FEDERAL COURT OF AUSTRALIA

Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741

ENVIRONMENT – Convention on Wetlands of International Importance (‘Ramsar Convention’) – clearing of designated wetland – whether purported designation by the Commonwealth of a wetland pursuant to Art 2 of the Ramsar Convention was effective for the purposes of s 17(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) – whether clearing of land was specifically authorised under State law – whether clearing of land had a ‘significant impact on the ecological character of a declared Ramsar wetland’ within s 16(1) of the EPBC Act

Constitution s51(xxix)

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 16, 17, 17B, 43A, 52, 138, 326, 327, 333, 334, 335, 409, 475, 481, 482, 484, 519, 523, 524, 528

Crimes Act 1914 (Cth) s 4AA

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3

Environmental Planning and Assessment Act 1979 (NSW) ss 4, 5, 14, 24, 26, 54, 55, 57, 62, 66, 67, 68, 69, 70, 76, 76A

Noxious Weeds Act 1993 (NSW) ss 7, 8, 9, 12

Native Vegetation Conservation Act 1997 (NSW) ss 4, 6, 7, 14, 21, 22

Local Government Act 1993 (NSW) s 4

Soil Conservation Act 1938 (NSW) s21AB

Convention on Wetlands of International Importance especially as Waterfowl, done at Ramsar, Iran on 2 February 1971

Convention for the Protection of the World Cultural and Natural Heritage

Vienna Convention on the Law of Treaties

Richardson v Forestry Commission (1988) 164 CLR 261 cited

Queensland v Commonwealth (1989) 167 CLR 232 cited

Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 cited

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited

Energy Resources of Aust Ltd v Commission of Taxation [2003] ATC 4024 cited

Evans v Friemann (1981) 35 ALR 428 cited

Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 cited

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited

Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 followed

Booth v Bosworth (2001) 114 FCR 39 followed

National Parks and Conservation Association v Babbitt 241 F3d 722 (9^th Cir. 2001) cited

Tesco Supermarkets Ltd v Nattrass [1972] AC 153 cited

Hamilton v Whitehead (1988) 166 CLR 121 cited

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 cited

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 198 ALR 657 cited

MINISTER FOR THE ENVIRONMENT AND HERITAGE v RONALD GREENTREE & ORS

N 914 of 2003

SACKVILLE J

SYDNEY

11 JUNE 2004

THE COURT ORDERS THAT:

1. Within 14 days the Minister file and serve:

(a)                   short minutes of order consistent with these Reasons for Judgment, specifying the orders that should be made against Mr Greentree and Auen (other than the civil penalties that should be imposed) and providing for dismissal of the proceedings against the other respondents;

(b)                written submissions in support of the short minutes of order;

(c)                additional evidence (if any) on which the Minister intends to rely in support of the short minutes of order;

(d)                   any evidence on which the Minister intends to rely on the question of penalty;

(e)                    written submissions on penalty; and

(f)                  written submissions on costs.

2. Within a further 14 days the respondents file and serve:

(a)                short minutes of order, consistent with these Reasons for Judgment, to the extent that the respondents dispute the short minutes of order filed and served by the Minister;

(b)               written submissions in support of the respondents’ short minutes of order;

(c)                additional evidence (if any) on which the respondents intend to rely in support of the respondents’ short minutes of order;

(d)               any evidence on which Mr Greentree and Auen intend to rely on the question of penalty;

(e)                written submissions on behalf of Mr Greentree and Auen on penalty; and

(f)                 written submissions on costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TABLE OF CONTENTS

APPENDIX A

LIST OF ABBREVIATIONS

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     This is an application for orders requiring the payment of pecuniary penalties and for other relief under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). The applicant (‘the Minister’)alleges that each of the seven remaining respondents has contravened s 16(1) of the EPBC Act by taking action that has, will have or is likely to have ‘a significant impact on the ecological character of a declared Ramsar wetland’.

2                     Subject to certain exceptions, a ‘declared Ramsar wetland’ is a wetland or part of a wetland designated by the Commonwealth under Art 2 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat, done at Ramsar, Iran on 2 February 1971 [1975] ATS 48 (the ‘Ramsar Convention’): EPBC Act, ss 17(1), 528. The Minister claims that four separate areas totalling 823 hectares, known as the ‘Gwydir Wetlands: Gingham and Lower Gwydir (Big Leather) Watercourses’ (‘Ramsar Gwydir Wetlands’), were duly designated by the Commonwealth under Art 2 of the Ramsar Convention, for the purposes of s 17(1) of the EPBC Act, on or about 14 June 1999. The Ramsar Gwydir Wetlands are located about 80 kilometres west of Moree in the north-west of New South Wales.

3                     The allegations concern one component of the Ramsar Gwydir Wetlands constituting an area of about 100 hectares, which was referred to in evidence as the Windella component of the Ramsar Gwydir Wetlands (the ‘Windella Ramsar site’). The Windella Ramsar site is wholly within the boundaries of a property known as ‘Windella’ which itself comprises about 2,000 hectares. The respondents are alleged to have damaged the Windella Ramsar site by clearing and ploughing it at some time between 27 June 2002 and 30 July 2003.

4                     The fifth respondent (‘Ms Greentree’), the sixth respondent (‘Kenneth Harris’) and the seventh respondent (‘Robert Harris’), (collectively ‘the Proprietors’) became registered as the proprietors of Windella on 17 January 2002. At all material times, Windella has been farmed by a partnership known as ‘Greentree Farming’. Since 1 July 2002, the partners in Greentree Farming have been the third respondent (‘Merrywinebone’) (as to 49.9%) and the eighth respondent (‘Auen’) (as to 50.1%). Before that date, under a partnership agreement dated 5 January 1996, the partners were Merrywinebone (as to 49%), the first respondent (‘Mr Greentree’) (as to 25.5%) and Maree Greentree (as to 25.5%). Maree Greentree was originally a party to the proceedings, but she was removed as a respondent prior to the hearing.

5                     At all material times, Greentree Farming has been managed and directed by Mr Greentree. Since about 10 May 2003, the fourth respondent (‘Mr Norrie’) has been the farming operations manager of Greentree Farming. Prior to that time the farming operations manager was Mr Andrew Jones (who is not a party to the proceedings, but gave evidence).

6                     Auen was registered as a company on 21 June 2002. Its shareholders are Mr Greentree, who is the sole director, and Prime Grain Pty Ltd, of which Mr Greentree appears to be the sole shareholder. Mr Greentree has been the sole director of Auen since its incorporation and has been a director of Prime Grain Pty Ltd since 17 October 1989.

7                     The directors of Merrywinebone are Robert Harris, Kenneth Harris and Bruce Maylon Harris. Robert Harris and Kenneth Harris are two of the Proprietors of Windella and are parties to the proceedings; Bruce Maylon Harris is not a party. The principal shareholder in Merrywinebone is Limthono Pty Ltd, the shares in which are held by the three directors of Merrywinebone. Limthono Pty Ltd’s principal activity is that of trustee company.

8                     The Minister seeks an order for the payment of pecuniary penalties against

• Mr Greentree;
• Merrywinebone; and
• Auen.

For convenience, I refer to these three respondents collectively as the ‘Principal Respondents’.

9                     The Minister seeks orders against all respondents restraining them from:

• engaging in land clearing, ploughing or cropping activities disturbing or affecting the soil inside and up to 40 metres outside the Windella Ramsar site;
• engaging in similar activities disturbing or affecting the soil within 40 metres ‘on either side of the entire length of the watercourse’ on Windella in and leading into the Windella Ramsar site; and
• engaging in any work designed to alter the flow regime of waters into and out of the Windella Ramsar site.

10                  The Minister also seeks orders that the Principal Respondents undertake specified repair measures, such as fencing the perimeter of the Windella Ramsar site, installing a pipe and control gate in the stock and domestic channel at the western end of the site and plant certain trees. The orders sought would require the Principal Respondents to make all reasonable endeavours to procure the release of sufficient water to inundate the Windella Ramsar site with not less than 500 megalitres by way of initial inundation and not less than 200 megalitres in the following month.

11                  The only orders (other than injunctive relief) sought against the Proprietors would require them to give all necessary consents for access to the Windella Ramsar site and to take all reasonable steps to prevent the Principal Respondents from further harming the ecological character of the Windella Ramsar site.

12                  On 31 July 2003, I made interlocutory restraining orders in terms similar to those now sought by the Minister against all current respondents other than Auen. I subsequently dismissed an application by those respondents to dissolve the restraining orders: Minister for the Environment and Heritage v Greentree [2003] FCA 857. These orders have accordingly remained in place pending the hearing. Neither party objected to my dealing with the application for final relief notwithstanding my involvement in the interlocutory proceedings.

13                  It was common ground that I should first determine whether any of the respondents were liable to civil penalties and whether injunctive relief should be granted to the Minister. If I conclude that civil penalties should be imposed, the quantum of penalties will be addressed at a subsequent hearing.

THE LEGISLATION

14                  The EPBC Act came into force on 16 July 2000, some thirteen months after the purported designation of the Ramsar Gwydir Wetlands. The objects of the Act include the following (s 3(1)):

‘(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

(b)          to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and

(c)           to promote the conservation of biodiversity; and

(d)          to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and

(e)           to assist in the co-operative implementation of Australia’s international environmental responsibilities…’

15                  Section 3(2) provides that in order to achieve its objectives, the EPBC Act:

‘(a) recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and

(b)               strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements; and

…

(e) enhances Australia’s capacity to ensure the conservation of its biodiversity by including provisions to:

(i)                 protect native species…;

…;

(iv) identify processes that threaten all levels of biodiversity and implement plans to address these processes; and

(f) includes provisions to enhance the protection, conservation and presentation of world heritage properties and the conservation and wise use of Ramsar wetlands of international importance…’

16                  Division 1 of Part 3 of the EPBC Act is headed ‘Requirements relating to matters of national environmental significance’. Subdivision B (ss 16-17B) deals with ‘Wetlands of international importance’. Section 16 provides as follows:

‘(1) A person must not take an action that:

(a)               has or will have a significant impact on the ecological character of a declared Ramsar wetland; or

(b)               is likely to have a significant impact on the ecological character of a declared Ramsar wetland.

Civil penalty:

(a)               for an individual – 5,000 penalty units;

(b)               for a body corporate – 50,000 penalty units.

(2) Subsection (1) does not apply to an action if:

(a)               …

(b)               Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

…

(3) In this Act:

ecological character has the same meaning as in the Ramsar Convention.’

A penalty unit is defined by s 4AA(1) of the Crimes Act 1914 (Cth) to mean $110. It follows that the maximum civil penalty for breach of s 16(1) of the EPBC Act is $550,000 in the case of an individual and $5,590,000 in the case of a body corporate.

17                  Section 17B of the EPBC Act makes it an offence to take action which results or will result in a significant impact on the ecological character of a declared Ramsar wetland. It appears that no criminal proceedings have been instituted against the respondents.

18                  The heading to s 17 is ‘What is a declared Ramsar wetland?’ Section 17(1) answers that question as follows:

‘A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not:

(a)               excluded by the Commonwealth from the boundaries of a wetland in the List under that Article; or

(b)               deleted by the Commonwealth from the List under that Article.’

The Ramsar Convention, for the purposes of s 17(1), means the text of the Convention as in force immediately before the commencement of the EPBC Act: s 528.

19                  Section 17(2) of the EPBC Act provides that a wetland is also a declared Ramsar wetland if a declaration to that effect made by the Minister is in force. Section 17A empowers the Minister to make such a declaration if satisfied that the wetland is of international significance. No Ministerial declaration has been made in respect of the Gwydir Wetlands.

20                  The word ‘wetland’ is given the same meaning as in the Ramsar Convention: s 528. As will be seen, Art 1(1) of the Ramsar Convention defines ‘wetlands’ for the purposes of the Convention in broad terms.

21                  Section 326(1) of the EPBC Act provides that the Commonwealth may designate for inclusion in the List a wetland containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on the proposed designation of the wetland and management arrangements for the wetland. When the Commonwealth designates a wetland for inclusion in the List, it must give notice in the Gazette of this event as soon as practicable after it occurs: s 327(1).

22                  The respondents contend that s 16(1) of the EPBC Act does not apply to their actions because of what I shall describe as the exclusion in s 16(2)(b). It will be recalled that s 16(2)(b) provides that s 16(1) does not apply to an action if Part 4 lets the person take the action without an approval under Part 9. Section 43A of the EPBC Act is in Div 6 of Part 4. It provides as follows:

‘(1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:

(a)               the action consists of a use of land…and

(b)               the action was specifically authorised under a law of…a State…before the commencement of this Act; and

(c)                immediately before the commencement of this Act, no further environmental authorisation was necessary to allow the action to be taken lawfully.’

23                  Section 43A(2) defines ‘environmental authorisation’ to mean, relevantly:

‘an authorisation under a law of…a State…that has either or both of the following objects (whether express or implied):

(a)               to protect the environment;

(b)               to promote the conservation and ecologically sustainable use of natural resources.’

24                  The term ‘action’, which is used in both ss 16 and 43A of the EPBC Act, is defined in s 523 to include:

‘(a) a project; and

(b) a development; and

(c) an undertaking; and

(d) an activity or series of activities; and

(e) an alteration of any of the things mentioned in paragraph (a), (b), (c), or (d).’

Section 524(2), however, provides that:

‘A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.’

The expression ‘government body’ is defined to include a State, but does not mention a State agency or a body established under State law: s 524(1).

25                  Section 481(1) of the EPBC Act provides that the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that a person contravening a civil penalty provision pay the Commonwealth a pecuniary penalty. Section 16(1) is a civil penalty provision: see s 482.

26                  Section 475 of the EPBC Act empowers the Court to grant injunctions. It relevantly provides as follows:

‘(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:

(a)               the Minister; or

(b)               …

(c)                …

may apply to the Federal Court for an injunction.

(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.

(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).

(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute an offence or other contravention of this Act or the regulations, the Court may grant an injunction requiring the person to do the act.’

THE RAMSAR CONVENTION

Terms of the Convention

Conferences of the Contracting Parties

32                  It will be recalled that Art 2(1) of the Ramsar Convention states that the boundaries of each wetland designated for inclusion in the List of Wetlands of International Importance (‘List’) ‘shall be precisely described and also delineated on a map’. Meetings of the Contracting Parties, held in accordance with Art 6 of the Ramsar Convention, have addressed the procedures that should be followed by Contracting Parties at the time of making initial designation of wetlands or when making subsequent designations.

33                  At the 4^th Meeting of the Conference of Contracting Parties (Montreux, Switzerland, 27 June – 4 July 1990), the Contracting Parties recommended that any Contracting Party that had not, when signing the Ramsar Convention or when depositing its instrument of ratification, provided the Depositary with a precise description and map of the boundaries of the wetlands designated for inclusion in the List, provide such documentation to the Bureau as early as possible thereafter (Resolution 4.5 on Accession Requirements). The Contracting Parties also recommended (Recommendation 4.7: Mechanisms for Improved Application of the Ramsar Convention) that the data sheet developed for the description of Ramsar sites (the text of which was appended as Annex 2A to the Recommendation)

‘be used by the Contracting Parties and the Bureau in presenting information for the Ramsar database, and as appropriate in other contexts’.

34                  The information sheet forming part of Annex 2A, set out 32 items, including:

‘1. Country

…

5. Name of wetland

6. Date of Ramsar designation

7. Geographical coordinates

8. General location (nearest large town)

9. Area (in hectares)

…

13. Physical features

-         geology and geomorphology

-         origins (natural or man-made)

-         hydrology…

-         water quality…

-         catchment area

-         downstream area…

-         climate

14. Ecological features (main habitats and vegetation types)

…

21. Hydrological and biophysical values…

…

23. Noteworthy fauna

24. Noteworthy flora

…

31. Reasons for inclusion (reference to criteria)

32. Outline map of site (to be appended).’

35                  The information sheet was accompanied by an ‘Explanatory Note and Guidelines’. This stated that ‘[a]n information sheet should be completed for each Ramsar wetland’. The Explanatory Note recognised that ‘[i]n some cases, insufficient information may be available for entries to be made under all sections of the data sheet’. However, compilers were urged to fill out as many sections as possible ‘and in any event to make some entry under [a number of sections, including 1, 5, 7, 8, 9, 13, 14, 21, 23]’. The document set out notes relating to each section of the information sheet. Those concerning items 7 and 32 were as follows:

‘7. Geographical coordinates: the geographical coordinates (latitude and longitude; Greenwich) of the approximate centre of the wetland, expressed in degrees and minutes. If the site consists of two or more discrete entities, the coordinates of the centres of each of these entities should be given.

[32.] Outline map of site: append an outline map of the wetland. Whenever possible, maps should include geographical coordinates, a compass bearing, scale, date, administrative boundaries, the boundary of the Ramsar site, some topographical information, notable hydrological features, the distribution of the main wetland habitat types, main roads and other notable features. The map should be as detailed and up to date as possible; 1:25,000 or 1:50,000 should be regarded as the minimum acceptable scale for most sites.’

36                  At the 5^th Meeting of the Conference of the Contracting Parties (Kushiro, Japan, 9-16 June 1993), the Conference requested that

‘in addition to a map showing definitive site boundaries, a completed Ramsar datasheet be submitted to the Convention Bureau upon designation of a wetland for the List, and that particular attention be given to completing sections 16-17 (conservation measures), 21-24 (functions and values) and 31 (criteria for inclusion).’

(Resolution 5.3: Procedure for Initial Designation of Sites for the List of Wetlands of International Importance.)

37                  The 6^th Meeting of the Conference of the Contracting Parties, (Brisbane, Australia, 19-27 March 1996) ‘urge[d]’ (Resolution VI.13: Submission of Information on Sites Designated for the Ramsar List of Wetlands of International Importance):

‘7. …Contracting Parties to give priority to providing the Bureau by 31 December 1997 with maps and completed Information Sheets on Ramsar Wetlands for all sites designated for the Ramsar List, and to revise the data provided at least every six years (i.e. every second Meeting of the Conference) for monitoring purposes…’

Resolution VI.16 (Accession Procedures) recorded that the Conference:

‘5. DECIDES that, notwithstanding the provisions of Resolution 4.5, the boundaries of each listed wetland shall be precisely described and also delimited on a map by States at the time of signing the Convention without reservation as to ratification, ratifying, or acceding to the Convention;

6. FURTHER DECIDES that the boundaries of each additional site, designated subsequently by States for the List of Wetlands of International Importance, shall be precisely described and also delimited on a map;

7. INVITES Contracting Parties to provide, at the time of designation of a wetland for the List, a completed Information Sheet on Ramsar Wetlands, giving particular attention to the subjects mentioned in Resolution 5.3; and

8. REITERATES the invitation to States and Contracting Parties contained in Resolution 5.3 to enter, in case of doubt, into informal consultations with the Bureau and its technical advisors.’

38                  The 6^th Meeting approved a ‘Strategic Plan 1997-2002’ (Resolution VI.14). The Strategic Plan specified a number of ‘General Objectives’. General Objective 5 was ‘to ensure the conservation of all sites concluded in the [List]’. Under this heading, the Strategic Plan stated a number of ‘Operational Objectives’. Operational Objective 5.3 was as follows:

‘Operational Objective 5.3:

To obtain regularly updated information on wetlands of international importance, in accordance with the approved standard format.

Action 5.3.1 Ensure that the maps and descriptions of Ramsar sites submitted to the Ramsar Database by the Contracting Parties at the time of designation are complete, in the approved standard format of the Information Sheet on Ramsar Wetlands, and provide sufficient detail to be used for management planning and monitoring of ecological character. [CPs, Bureau, Wetlands International]

Action 5.3.2 Ensure that missing or incomplete data sheets and/or maps of listed sites are submitted as a matter of priority and in the shortest possible time, as a means to enhance the relevance and use of the Ramsar Database. [CPs]

Action 5.3.3 Ensure that data sheets on Ramsar Sites are regularly updated, at least for every second meting of the COP, so that they can be used for reviewing the achievements of the Convention, for future strategic planning, for promotional purposes, and for site, regional and thematic analysis (Resolution VI.13). [CPs, STRP, Bureau, Wetlands International]’

A note to the General Objectives states that the body or bodies responsible for carrying out each Action is indicated in square brackets. ‘Bureau’ means the Ramsar Convention Bureau, ‘STRP’ means the Scientific and Technical Review Panel, while ‘Wetlands International’ is an ‘international partner Organisation’. The initials ‘CPs’ are not explained but presumably refer to ‘Contracting Parties’.

39                  As recorded in a document entitled ‘Measures Taken for Improving Data on Ramsar Sites’ (29 June 1997), the Ramsar Convention’s STRP and Bureau examined the Information Sheet on Ramsar Wetlands (‘RIS’) originally approved by Recommendation 4.7. The outcome was as follows:

‘The text of the RIS has not been changed, but a new presentation has been adopted with the aim of making it easier to use. The presentation of the Guidelines which accompany the RIS has also been reviewed and improved.’

40                  The amended RIS retained item 7 (Geographical ordinates) but renumbered it as item 4. The note to the new item 4 was in substance the same as the note to the previous item 7. Item 32 (Outline map of site) was renumbered item 10. The note to item 10 was revised from its previous form to read as follows:

‘Outline map of site: The most detailed and up-to-date map of the wetland available should be appended to the Information Sheet. Indicate whether or not a map accompanies the Information Sheet by ticking the appropriate yes or nobox.

The “ideal” Ramsar site will clearly show the boundaries of the Ramsar site, scale, latitude, longitude and compass bearing, administrative boundaries (e.g., province, district, etc.), and display topographical information, the distribution of the main wetland habitat types and notable hydrological features. It will also show major landmarks (towns, roads, etc.). Indications of land use activities are especially useful.

…

The optimum scale for a map depends on the actual area of the site depicted. Generally the map should have a 1:25,000 or 1:50,000 scale for areas up to 10,000 ha; 1:100,000 scale for large areas up to 100,000 ha; 1:250,000 for areas exceeding 100,000 ha. In simplest terms, the site should be depicted in some detail…’ (Emphasis in original.)

41                  The 7^th Meeting of the Conference of Contracting Parties (San Jose, Costa Rica, 10-18 May 1999), recited some of the history to which I have referred and recorded (Resolution VII.12) that the Conference expressed deep concern:

‘14. …that there remain a number of Ramsar sites for which an official description has not been provided or updated, or has not been provided in one of the three official working languages of the Convention, and/or for which a suitable map has not been submitted…’

The Conference called upon a number of named Contracting Parties to submit site descriptions concerning to the Ramsar Information Sheet and ‘as a matter of the highest priority’ to provide suitable maps where none had been submitted. Australia was not among the Contracting Parties so named.

42                  A further revision of the RIS was approved at the 8^th Meeting of the Conference of the Contracting Parties (Valencia, Spain, 18-26 November 2002) by Resolution VIII.13: ‘Enhancing the Information on Wetlands of International Importance (Ramsar sites)’. The revised (and again renumbered) RIS contains a more detailed ‘Explanatory Note and Guidelines’. Annexure III to that document sets out ‘Additional guidelines for the provision of maps and other spatial data for Ramsar Sites’. Annexure III includes the following paragraphs:

‘1. The provision of a suitable map or maps is a requirement under Article 2.1 of the Convention – it is fundamental to the process of designating a Wetland of International Importance (Ramsar site), and is an essential part of the information supplied in the Information Sheet on Ramsar Wetlands (RIS). Clear mapped information about the site is also vital for its management.

…

3. Maps provided by a Contracting Party on designation of a Ramsar site should, as far as possible, and as high priority attributes:

i) be prepared to professional cartographic standards…;

ii) show the Ramsar Site in its natural or modified environment and should be within the scale ranges specified below, depending upon the size of the site;

iii) clearly show the boundary of the Ramsar site, and distinguish this from any existing or proposed buffer zones;

…

v) include a key or legend that clearly identifies the boundary and each other category of feature shown on the map and relevant to the designation of the site; and

vi) show the map’s scale, an indication of geographical coordinates (latitude and longitude), an indication of compass bearing (north arrow) and, if possible, information on the map’s projection…’

ISSUES

THE RAMSAR GWYDIR WETLANDS

51                  According to Mr McCosker, a botanist whose evidence I found generally to be helpful, the Ramsar Gwydir Wetlands are located on an inland terminal delta in the Darling Riverine Plains in Northern New South Wales. They are a component of a regional network of wetlands which include the Macquarie Marshes and the Narran Lakes and contain some of the largest stands of water couch / spike rush meadows and marsh club-rush marshlands in the Murray-Darling Basin.

52                  The Ramsar Gwydir Wetlands, including the Windella Ramsar site are not consistently wet, but experience prolonged dry periods. They play an important part in the biological and ecological functioning of the Murray-Darling Basin. Mr McCosker explained the regional importance of the Ramsar Gwydir Wetlands as follows:

‘Major wetlands in the Murray-Darling Basin rarely flood simultaneously as their catchments fall in different climatic zones. Waterbirds are highly mobile and they move between wetlands according to prevailing conditions. They maximise their foraging and breeding opportunities by migrating to wetland areas that provide the most favourable conditions. The regional importance of the Gwydir Wetlands as migratory bird breeding habitat was evident in early 1996, when vast numbers of birds inhabited the Gwydir wetlands and only small breeding events occurred elsewhere in the Murray Darling Basin such as at Narran Lakes and the Macquarie Marshes Ramsar wetlands.’

53                  A good description of the Gwydir wetlands in what Mr McCosker said was the ‘general locality’ of Windella was given in a 1921 document. The Gwydir wetlands were then described as follows:

‘The Watercourse is that portion of the Gwydir River which ends as a defined river channel, and spreads itself roughly fan-shaped over surrounding plains. The Gwydir rises in the New England tableland, about 200 miles from the town of Moree, in N.W. New South Wales. At Moree it is a fine stream, but 9 miles below Moree the channel narrows, and practically disappears, and in flood-time huge volumes of water spread all over the surrounding plains through swamps and shallow watercourses. The average depth of these waters is 1 foot, and the rate of flow is slow, as the fall is about 8 feet in a mile. The whole area contains many timbers, in addition to the huge beds of ‘sags’, a kind of bulrush, and large belts of Wilga.’

54                  There have been significant changes both to the landscape and the hydrology of the Gwydir wetlands over time. Prior to European settlement, the land was heavily wooded, notably with coolabah and belah trees. For over a century, much of the land has been cleared, at least to some extent, for grazing and pasture.

55                  The Copeton Dam, which was constructed in the 1970s, is located in the upper catchment area, some 230 kilometres east of the Ramsar Gwydir Wetlands. Water is stored in the Copeton Dam for controlled release for irrigation purposes, although an allocation, known as an Environmental Contingency Allocation (‘ECA’), may be released for environmental purposes. Dr Bacon said that the effect of the Copeton Dam by 2001 had been to shrink the area of natural wetland by some 70 per cent. He acknowledged that the construction of the dam has had a major impact on the ecology of the Gwydir wetlands and the evidence clearly supports that conclusion.

56                  It also appears that channels and bore drains constructed over the last thirty years have diverted water away from the Gingham and Lower Gwydir watercourses for irrigated cropping purposes. This has reduced the volume of water received by the Ramsar Gwydir Wetlands, including the Windella Ramsar site, in recent years because of the demands of local irrigators. During dry times, the Windella Ramsar site receives most of its water via the Gingham channel which runs through the site in an east-west direction.

57                  Mr McCosker’s evidence showed that studies interpreting satellite imagery between 1973 and 1985, before the effects of the diversion of water for irrigation had become apparent, identified 220,000 hectares of wetlands and floodplain woodlands in the Gwydir Valley floodplain. He adopted the following description of the wetlands as they were before the Copeton Dam was constructed:

‘Eighty two per cent of this area was dominated by coolabah (Eucalyptus coolabah) woodland, with the remainder being concentrated within the Gingham and Lower Gwydir Watercourses. Here, flat overland grades allow shallow extensive flooding over approximately 20,000 ha of wetland dominated by water couch (Paspalum distichum), rushes (known locally as “sags”) (Bulboschoenus fluviatilis and Typha domingensis), sedges (Juncus aridicola) in association with various other aquatic plants including river buttercup (Ranunculus inundatus), water primrose (Ludwigia peploides), spike-rushes (Eleocharis spp.) and water milfoils (Myriophyllum varifolium). This wetland is probably the largest stand of water couch and Bulboschoenus fluviatilis in New South Wales.’

58                  In 1994, Mr McCosker himself mapped wetlands in the Gingham Watercourse from aerial photographs taken in 1985. The study covered some 13,600 hectares of the Gwydir wetlands. Mr McCosker described the area as follows:

‘The watercourse comprises swamps and channels that were subject to regular inundation prior to the completion of Copeton Dam in the early 1980s. There is a general absence of live coolabah trees on this land, however, extensive areas of dead coolabah trees remain. Although some of them bear scars as a result of ringbarking, the majority are thought to have died from prolonged inundation during the 1950s. Before river regulation vegetation predominantly comprised water couch and ribbed spike-rush (Eleocharis plana) meadows. River cooba occur as isolated trees or occasionally in clumps, with lignum forming a shrub layer in some areas. Extensive areas are void of any trees or shrubs. Coolabah occurs on the slightly higher watercourse periphery.

The water couch and ribbed spike-rush meadows appear to have contracted substantially in recent years, presumably as a result of a reduction in the frequency and duration of flooding. In the east flooding has diminished principally because of continuing streambank and streambed erosion in the constructed stock and domestic water channel. Consequently, small to moderate freshes do not leave the channel and flow overland, as they did in the past. The western watercourse has experienced a reduction in flooding due to insufficient water entering the system to reach the western end. As a consequence of channel erosion in the east and reduced volumes of water entering the watercourse over recent years, the former wetland has diminished to a comparatively small core area in the central section.

Lippia has spread extensively throughout this land system, with only the frequently inundated central area remaining relatively unaffected. Land subject to irregular and short duration flooding appears to be most severely affected.’

Lippia is an exotic allelopathic plant – that is, it exudes a toxin that suppresses the growth of other plants.

59                  There is an issue as to the adequacy of the documentation supplied by the Minister to the Ramsar Convention Bureau at the time of the purported designation of the Windella Ramsar site. Leaving that issue to one side for the present, the location of the Ramsar Gwydir Wetlands is shown on the map reproduced below, which was attached to the RIS for the Ramsar Gwydir Wetlands forwarded by the Minister to the Ramsar Convention Bureau on 2 June 1999 and received by the Bureau on 14 June 1999.

60                  According to Mr McCosker, the four Ramsar Gwydir Wetlands sites are representative components of the entire Gwydir wetlands system. The site on the property ‘Old Dromana’ is located on the Lower Gwydir Watercourse. The other three sites, namely Goddard’s Lease, Crinolyn and Windella, are located on the Gingham Watercourse. As already noted, the four discrete areas total about 823 hectares. The Windella Ramsar site is some 20 kilometres from the two most easterly sites (Goddard’s Lease and Old Dromana).

61                  The Gingham channel is a stock and domestic channel, some 50 kilometres in length, which was apparently constructed in the early 1980s. Water flows through the Gingham channel from east to west. Some of the water released from the Copeton Dam ultimately flows through the Gingham channel. For the first 180 kilometres or so, water released from the dam flows along the main river channel before being diverted into the Gingham channel west of Moree. The Gingham channel is not, however, the only channel providing water for stock and domestic purposes to landholders in the Gwydir Valley floodplain.

62                  Ms McDonald, a Scientific Coordinator in the Department of Environment and Heritage with qualifications in applied remote sensing, prepared coloured maps of the Windella Ramsar site and the surrounding areas using aerial photographs and satellite images. Ms McDonald overlaid some of the images so obtained with data defining the boundaries of the Windella Ramsar site derived from information supplied by the New South Wales National Parks and Wildlife Service (‘NPWS’) (now part of the Department of Environment and Conservation). She also overlaid some of the images with cadastral information showing the boundaries of Windella (including internal lot boundaries) and neighbouring properties.

63                  Senior counsel for the Minister, Mr Fagan SC, relied on these photographs to demonstrate that between the two dates, clearing of the land, including the removal of native trees, had taken place. For present purposes their significance lies in the overlays which show the relationship between the boundaries of the Windella Ramsar site (as determined by Ms McDonald) and the cadastral boundaries.

64                  Appendix A reproduces two of these images. The first is the product of an aerial photograph taken on 6 October 2002, a time of drought. The second is derived from an aerial photograph taken on 14 September 2003. As noted, the overlays in each case show the boundaries of the Windella Ramsar site and the cadastral boundaries. The parallel lines apparently reflect the fact that strips of land were withheld from land grants for possible use as roads.

65                  It will be seen that the western boundary of the Windella Ramsar site does not coincide with the western boundary of Windella itself. Rather, the western boundary of the site is to the east of the western boundary of Windella and at an angle to it. The photograph shows clearly the course of the Gingham channel through the Windella Ramsar site, the water in the channel flowing from east to west and continuing in a generally westerly direction after it leaves the site. A dam is located within the Windella Ramsar site, to the northwest of the more easterly bend in the Gingham channel.

COURSE OF EVENTS

DESIGNATION PROCESS FOR THE WINDELLA RAMSAR SITE

66                  The contention that the Minister had not designated the Ramsar Gwydir Wetlands (and the Windella Ramsar site in particular) ‘under Article 2 of the Ramsar Convention’ for the purposes of s 17(1) of the EPBC Act did not emerge as an issue until well after the hearing had commenced. Doubtless for this reason, the evidence relating to the designation process was presented less systematically than otherwise might have been the case. However, the evidence turned out to be largely uncontroversial, although there was a dispute as to whether what was done satisfied the requirements of s 17(1) of the EPBC Act.

67                  On 2 February 1999, a Memorandum of Understanding for the Gingham and Lower Gwydir (Big Leather) Watercourses (the ‘MOU’) was signed by a number of parties, including the Commonwealth, New South Wales and the then proprietors of the four affected properties (‘the Landholders’). The then proprietor of Windella, Mr S Murphy, his wife and daughter were among the signatories. The MOU was expressed not to be a binding contract, but the parties were said to have signed in the expectation that the principles stated in the document would be honoured. The MOU recorded the parties understanding that Ramsar listing ‘should be considered to be in perpetuity’. The MOU also stated that any of the Landholders could withdraw from it if they were adversely affected by management decisions and the dispute resolution procedure failed. Presumably the MOU was intended to satisfy the requirements of s 326(1) of the EPBC Act.

68                  The MOU noted that the Gingham and Lower Gwydir Watercourses met the criteria for inclusion in the Ramsar list and that the value of the wetlands had been detailed in an attached RIS[Information Sheet on Ramsar Wetlands]. The Landholders were said to be the custodians of the wetlands for future generations. However, the MOU provided for all decisions regarding management of the wetlands to be made with the full understanding and support of the Landholders. The attached RIS included a copy of the maps reproduced above at [59] and below at [74].

69                  On 17 March 1999, Ms Hampton of NPWS forwarded to Mr Bowen, also of the NPWS, a document prepared by Ms Savage of the NSW Department of Land and Water Conservation. Ms Savage, who appears to have been based in Moree, identified GPS (global positioning satellite) points for three corners of the proposed Windella Ramsar site. The points were identified as Australian Map Grid (‘AMG’) co-ordinates, using as a reference point the Australian Geodetic Datum adopted in 1966 (‘AGD 66’). There was no evidence as to how Ms Savage came to select these co-ordinates as the corners of the proposed Windella Ramsar site.

70                  The fourth corner of the site was identified by Ms Savage as ‘south west corner – boundary portion 8’ (that is, the south west corner of lot 8 in DP 750444, being part of Windella). Ms Hampton also provided a map, described as ‘Mr Murphy’s map’, which had the boundaries of the proposed Windella Ramsar site endorsed by hand. I infer that this map was prepared by Mr Murphy, one of the parties to the MOU. The handwritten part of the map placed the western boundary of the proposed Windella Ramsar site along part of Windella’s western boundary.

71                  On the same day, Ms Hampton sent Mr Bowen a memorandum suggesting the preparation of three maps for the proposed sites. One was to be at a scale between 1:80,000 and 1:100,000 showing each of the four ‘properties’ in relation to each other and the wetland and drainage system. The other maps were to be at a smaller scale and were to show more detail of the properties. The memorandum continued as follows:

‘An “ideal” Ramsar site map will need to include the four properties to be listed clearly showing the boundaries of each. Other features to include are scale, latitude, longitude, compass bearing, basic topographic and hydrological features (drainage, rivers, permanent water), landmarks (roads, direction and distance to Moree township if possible).’

72                  Mr Bowen used the coordinates he had been given to ‘draw’ the boundaries of the proposed Windella Ramsar site (and the other three proposed sites) onto a digitised topographic map of New South Wales. Since Mr Bowen did not have coordinates for the fourth point, and did not have cadastral informal available in digital form, he was forced to estimate the location of the fourth point. He did this in consultation with Ms Hampton, but acknowledged in cross-examination that they had made a ‘guess estimate’ based on Mr Murphy’s map. With the four co-ordinates now selected, Mr Bowen entered them into the computer, relying on the software to ‘join the dots’. He followed a similar procedure for the other three proposed Ramsar sites.

73                  Having stored this information electronically, Mr Bowen had the ability to select other material from files of data to ‘overlay’ onto the map containing the proposed sites. Hard copy versions including the overlaid material could be printed out. In fact Mr Bowen printed out three coloured versions of the map: the first showing all four sites; the second showing the proposed sites on Windella and Crinolyn; and the third showing the proposed sites on Goddard’s Lease and Old Dromana. Each version included some basic topographic information, such as roads and watercourses, and displayed AMG co-ordinates on the axes of the map.

74                  A copy of the first of these maps has already been reproduced ([59]) above). A copy of the second, which simply reproduces a portion of the first but on a different scale is set out below.

75                  There are clear differences between the proposed Windella Ramsar site depicted by hand on Mr Murphy’s map and the shape of the site depicted on the map printed out by Mr Bowen. As he acknowledged, the latter has a more or less perpendicular western boundary, while the hand-drawn map has an angled western boundary. The hand-drawn eastern boundary of the site on Mr Murphy’s map is slightly angled, while on Mr Bowen’s map it is sharply angled. The northern and southern boundaries of the site in Mr Bowen’s map are elongated when compared with the hand drawn version. Mr Bowen’s evidence did not explain fully the reasons for these differences, although he suggested that there can be differences between the AMG projections system and a system which uses latitude and longitude. However, the differences would seem attributable, at least in large measure, to Mr Bowen’s guess as to the location of the fourth corner.

76                  Mr Bowen was asked in cross-examination whether additional information could have been incorporated into the map that he produced:

‘MR LITTLEMORE: Had you wanted to, you could have produced not the very simple plan you have produced, but a piece of paper showing all relevant topographic information, shire boundaries, main roads, water bodies, rivers, fence lines, you could have put that all onto the document, couldn’t you, had you wanted to?---If the information, well, not all that information was available to me to put on there.

You don’t know that. You hadn’t asked or it?---I hadn’t asked for it in that specific case.

No, and nobody gave you any guidance as to what was required, did they for a Ramsar map?---No, they didn’t.

Had you been told, a Ramsar map is required to have latitude and longitude, topographical information, statements as to main habitat types, shire boundaries, state boundaries, local government areas, roads, water courses and other features. There would have been no problem with you getting that information and accumulating it into one form of map, would there?---No.’

77                  Mr Bowen provided a coloured printout of each of the three maps to Ms Hampton. By a letter dated 31 March 1999, the Director-General of the NPWS forwarded to the Secretary of Environment Australia (as the Commonwealth Department of Environment and Heritage was then known) a completed RIS for the Gwydir Wetlands, to which was attached the three maps printed out by Mr Bowen. Mr Bowen retained a coloured printout of each of the three maps on the NPWS’s files.

78                  As I have explained, the form of the RIS originally recommended at the 4^th Conference of Contracting Parties (Montreux, Switzerland, 1990), was amended in 1997. The RIS as amended was accompanied by an ‘Explanatory Note and Guidelines’. The RIS provided for the following items of particular relevance to this case:

‘4. Geographical coordinates

…

10. Map of site included? Please tick yes -or- no.

(Please refer to the Explanatory Note and Guidelines document for information regarding desirable map traits).’

The explanatory notes for these items have been reproduced earlier (see [35] (item 7 was later renumbered as item 4, and item 32 renumbered 10), [40] and [42]).

79                  The RIS completed by the NPWS and forwarded on 31 March 1999 to the Secretary of Environment Australia followed the form approved by the Bureau. Item 4 gave geographical co-ordinates for each of the four nominated sites. In the case of the Windella Ramsar site, the co-ordinates given were ‘Lat 29° 12’ 10” Long 149° 05’ 40”.’ These co-ordinates were presumably intended to define a point at the approximate centre of the site, as suggested in the explanatory notes. The ‘yes’ box in item 10 was ticked.

80                  Under the heading ‘12. Justification of the criteria selected [to support the nomination]’, the RIS included the following:

‘Representative or unique wetlands:

Although parts of the wetland have been substantially modified due to river regulation, the Gwydir Wetlands remain a particularly good example of an inland terminal delta in both the Darling Riverine Plains bioregion and the whole of the Murray-Darling Basin. It plays a substantial part in the biological and ecological functioning of the Murray-Darling Basin, as the major wetlands in the Basin are rarely inundated simultaneously, and therefore not always suitable for bird breeding at the same time. The Ramsar listed areas are important components of the entire Gwydir wetland system.

General criteria based on plants and birds:

The wetland supports an appreciable assemblage of rare, endangered and vulnerable species, including magpie geese (breeding), and brolga. It supports a number of common species at the edge of their range including black-necked stork (jabiru), and jacana. The wetland is of value for maintaining genetic and ecological diversity because there are few of these inland wetlands left, and they are declining. It is of special habitat value particularly as breeding and feeding habitat for large numbers of colonial waterbirds.’

81                  The RIS also included the following sections:

‘16. Ecological features: (main habitats and vegetation types)

Prior to river regulation, there were around 220,000 hectares of ephemeral and floodplain wetlands on the Gwydir Valley floodplain. Eighty two per cent of this area is dominated by coolabah (Eucalyptus coolabah) woodland. Here seasonal, extensive flooding occurs over approximately 20,000 ha of wetland dominated by aquatic plants…

Vegetation communities are predominantly determined by the frequency and duration of flooding. Variation of vegetation associations with soil types have also been observed. Three identifiable vegetation groups exist: those on high red solodic ridges subject to infrequent flooding for example bimble box (Eucalyptus poplunea) and white cypress pine (Callitris glaucophylla) communities; those on heavy clay soils in areas subject to periodic inundation for example coolabah … and belah (Casuarina cristate) communities; and those on heavy clay soils in channels or depressions subject to frequent inundation for example water couch (Paspalum distichum), ribbed spike rush (Eleocharis plana), marsh club rush (Bolboschoenus fluviatilis) and Juncus species…

17. Noteworthy flora: (indicating, e.g., which species/communities are unique, rare, endangered or biogeographically important, etc)

This wetland is probably the largest stand of water couch…and marsh club-rush…in New South Wales…

Other specific flora include ribbed spike-rush…tall spike-rush (Eleocharis sphacelata), tussock rush (Juncus aridicola) and cumbungi (Typha sp.), in association with various other aquatic plants including swamp buttercup (Ranunculus undosus), water primrose (Ludwigia peploides), swamp lily (Ottelia ovalifolia), starfruit (Damasonium minus), numerous sedges (Cyperus sp.) and water milfoils (Myriophyllum sp.)…’

82                  On 2 June 1999, the Commonwealth Minister for the Environment and Heritage wrote to the Secretary-General of the Ramsar Convention Bureau requesting that a number of sites, including the Ramsar Gwydir Wetlands, be added to the List. The letter, which was received by the Bureau on 14 June 1999, enclosed a hard copy of the RIS for each of the nominated sites. The RIS for the Ramsar Gwydir Wetlands transmitted to the Bureau was unaltered from the document prepared by the NPWS. However, according to Mr Hooy, a Senior Departmental officer, the Department would have checked the RIS with a view to ensuring that it complied with the guidelines and explanatory notes proposed for the purposes of the Ramsar Convention. It was common ground that the maps accompanying the Minister’s letter were black and white copies of the coloured maps printed out by Mr Bowen in March 1999 and forwarded to the Department.

83                  It should be noted that the maps:

• show the boundaries of the Windella Ramsar site, in the sense that the quadrilateral-shaped area of the site is drawn on the maps in accordance with an identified scale;
• do not show latitude and longitude readings and do not provide co-ordinates for the four corners of the site;
• show the AMG co-ordinates on the axes;
• show some waterbodies in the vicinity of the Windella Ramsar site;
• do not show the boundaries of Windella itself.

84                  On 12 October 1999 and 19 October 1999, an officer of NPWS emailed to Environment Australia an electronic file of the information ‘drawn’ by Mr Bowen on the digitised topographical map. That file contained only the boundaries of the site, plotted against the background of the AMG co-ordinates. With these data, Environment Australia would be able to add additional topographical information.

85                  Ms McDonald gave evidence that the Department’s database included a map showing the boundaries of the Windella Ramsar site. She said that she had compared what was stored on the Department’s data base with the electronic file that had been transmitted in October 1999. To do that Ms McDonald ‘translated’ the data recorded in that file to obtain correct latitude and longitude co-ordinates. She demonstrated this procedure in the witness box. Using the procedure, Ms McDonald was able to identify the co-ordinates the four corners of the Windella Ramsar site as follows:

Northwest Lat 29˚ 12’ 1” S

Long 149˚ 5’ 25” E

Southwest Lat 29˚ 12’ 17” S

Long 149˚ 5’ 25” E

Northeast Lat 29˚ 12’ 1” S

Long 149˚ 6’ 31” E

Southeast Lat 29˚ 12’ 23” S

Long 149˚ 6’ 27” E

Ms McDonald said that one second difference in a coordinate, either for longitude or latitude, equates to about five metres on the ground. I accept Ms McDonald’s evidence. I also accept that the procedures she described were carried out correctly and that the results are reliable.

86                  Mr Hooy gave evidence that the maps of the Windella Ramsar site were available on the Department’s website and thus could be accessed by members of the public. The website contains a general disclaimer to the effect that the Commonwealth does not guarantee the accuracy or completeness of any of the material on the website.

87                  The Ramsar Gwydir Wetlands were duly included in the List and have remained on the List.

ACTIONS RELATING TO THE WINDELLA RAMSAR SITE

THE AFFIRMATIVE DEFENCES

THE DESIGNATION ISSUE

The Submissions

116               Mr Fagan acknowledged that the plans accompanying the RIS sent to the Secretary–General of the Ramsar Convention Bureau on 2 June 1999 were different from Mr Murphy’s plan. However, Mr Murphy’s plan was of historical interest only. It was the Windella Ramsar site as recorded in the plans that were intended to be designated under Art 2 of the Ramsar Convention.

Reasoning

117               The provisions in the EPBC Act relating to declared Ramsar wetlands are supported by s 51(xxix) of the Constitution, which empowers the Parliament to make laws with respect to ‘External affairs’. The drafting of the EPBC Act reflects an appreciation of the need for legislation implementing a treaty to which Australia is a party to give effect to the treaty by means capable of being reasonably considered appropriate and adapted to that end: Richardson v Forestry Commission (1988) 164 CLR 261, at 289, per Mason CJ and Brennan J; at 300, per Wilson J; at 311-312, per Deane J; at 342, per Gaudron J. This can be seen in repeated references in the EPBC Act to the requirement that actions taken by the Commonwealth in relation to declared Ramsar wetlands be consistent with the Ramsar Convention: see, for example, ss 334(2), 335(2).

118               The EPBC Act must be construed against the background of the Ramsar Convention itself. Article 2(1) imposes an obligation upon each Contracting Party to designate suitable wetlands within its territory for inclusion on the List maintained by the Bureau established under Art 8. Each Contracting Party is obliged to designate at least one wetland to be included in the List when signing the Convention or depositing its instrument of ratification (Art 2(4)). Article 2(2) specifies the criteria to be applied in the selection of wetlands for the List. Each Contracting Party has the right to add to the List further wetlands or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List (Art 2(5)). A Contracting Party has obligations to promote the conservation of wetlands in its territory included in the List (Art 3).

119               It will be seen that the Ramsar Convention operates in a different manner from the Convention for the Protection of the World Cultural and Natural Heritage considered in, among other cases, Queensland v Commonwealth (1989) 167 CLR 232. Under the World Heritage Convention, each State Party has the responsibility to identify and delineate properties within its own territory which are part of the cultural or natural heritage. However, a property can be included in the World Heritage List only if the World Heritage Committee considers that the property has outstanding universal value in accordance with certain guidelines. Thus the Committee exercises a ‘gateway’ function in determining whether a property should be placed on the World Heritage List.

120               By contrast, the role of the Bureau pursuant to Art 8 (2)(b) of the Ramsar Convention is to maintain the List and be informed by the Contracting Parties of any additions or deletions concerning wetlands included in the List in accordance with Art 2(5). The bureau is also required to forward notification of any alterations to the List to all Contracting Parties (Art 8(2)(d)). This limited role is consistent with each Contracting Party’s right under Art 2(5) to add further wetlands to the List or, in defined circumstances, to remove wetlands from the List.

121               The definition of ‘declared Ramsar wetland’ in s 17(1) of the EPBC Act is integral to the prohibition in s 16(1) against action ‘that has or will have a significant impact on the ecological character of a declared Ramsar wetland’. The statutory definition closely follows the language of Art 2(1) of the Ramsar Convention and has two components (ignoring the exclusions in s 17(1)(a) and (b)):

(ii)                a wetland, or part of a wetland;

(iii)               designated by the Commonwealth under Art 2 of the Ramsar Convention for inclusion in the List.

122               The EPBC Act gives ‘wetland’ the same meaning it has in the Ramsar Convention: s 528. Article 1(1) of the Ramsar Convention defines ‘wetlands’ broadly so as to include areas of marsh or water, whether natural or artificial, permanent or temporary, with water that is static or flowing. Given that it is a matter for the Commonwealth to ‘designate’ a wetland, there may be a question as to whether the purported designation of a site is amenable to judicial review on the ground that the site does not in fact satisfy the definition of ‘wetlands’ in the Ramsar Convention, or whether the evaluation of a particular site is entrusted to the judgment of the Minister on behalf of the Commonwealth: cf Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. However, the question does not need to be addressed in the present case, as the respondents have not suggested that the Windella Ramsar site is not, or was not at the time of the purported designation, a ‘wetland’ for the purposes of s 17(1) of the EPBC Act. Nonetheless, I note that the definition in Art 1(1) of the Ramsar Convention refers to areas of marsh or water, ‘whether natural or artificial, permanent or temporary’. Despite a suggestion to the contrary at one stage in the hearing, it is no objection to the Windella Ramsar site being regarded a ‘wetland’ for the purposes of s 17(1) that it is inundated from time to time by releases of water from the Copeton Dam or by overflows from the Gingham channel.

123               The second component of s 17(1) of the EPBC Act itself incorporates two concepts. First, the wetland must be ‘designated’ by the Commonwealth; secondly, the designation must be ‘under Article 2 of the Ramsar Convention for inclusion in the List’.

124               The word ‘designate’ comes from the Latin ‘designatus’ which means ‘marked out’. The dictionary definition of ‘designate’ includes ‘to mark or point out; indicate; show; specify’ (Macquarie Dictionary). For a wetland to be ‘designated’ under s 17(1) of the EPBC Act it is necessary, in my view, for the Commonwealth to provide material which indicates or specifies the subject site. However, the expression, of itself, does not necessarily require the giving of precise geographical co-ordinates for the designated site, or the provision of a map which precisely defines the boundaries of the site in the manner of a survey. In the ordinary usage of the term, it is enough to ‘designate’ a site that its location is identified and sufficient information is provided to enable the approximate boundaries of the site to be determined.

125               Of course, s 17(1) of the EPBC Act needs to be read as a whole and not simply by reference to its component parts. The respondents’ argument was essentially that a wetland cannot be ‘designated…under Article 2 of the Ramsar Convention’ unless the purported designation complies strictly with the requirements of Art 2(1). The submission appeared to assume that Art 2(1) imposes an obligation on a Contracting Party to describe precisely and delimit the boundaries of the wetland at the time of the purported designation. Non-compliance with this obligation, so it was said, renders the purported designation of a site ineffective to create a ‘declared Ramsar wetland’ under s 17(1) of the EPBC Act.

126               As Lindgren J has pointed out recently, the

‘word “under” admits of degrees of precision and exactness on the one hand, and of looseness and inexactness on the other’.

Energy Resources of Aust Ltd v Commission of Taxation [2003] ATC 4024, at 4031 [37]. Depending on the context, ‘under’ may mean ‘in accordance with’, ‘pursuant to’, by ‘virtue of’ or ‘by’. Indeed, the authorities have interpreted the expression ‘decision…under an enactment’, in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), to include a decision purportedly made in pursuant of or under the authority of an enactment: Evans v Friemann (1981) 35 ALR 428, at 436, per Fox ACJ; Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367, at 375, per Branson J; cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In the context of a taxation statute, the High Court has held that a reference to disposal of an asset ‘under a contract’ directs attention to the source of the obligation to transfer the asset: Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520, at 537, per Gleeson CJ, Gaudron, McHugh and Hayne JJ.

127               In my view, s 17(1) of the EPBC Act, read in context, is not intended to incorporate any particular requirement derived from Art 2 of the Ramsar Convention as a precondition for the valid designation of a wetland for inclusion in the List. It must be remembered that Art 2 obliges the Commonwealth, as a Contracting Party, to designate at least one wetland for inclusion in the List and gives it the right to add further wetlands to the List. The Bureau’s role is confined, for present purposes, to maintain the List and act on information provided by Contracting Parties. Bearing this in mind, it seems to me that the expression ‘under Article 2 of the Ramsar Convention for inclusion in the List’, as used in s 17(1), is intended only to identify the source of the Commonwealth’s obligation or right to designate a wetland of international significance for inclusion in the List.

128               As I have explained, s 17(1), by the use of the word ‘designated’, incorporates a requirement that the relevant wetlands be indicated or specified. As I have also explained, it may be that a purported designation under s 17(1) will be ultra vires the Commonwealth unless the site specified objectively satisfies the statutory definition of a ‘wetland’. It also may be implicit in s 17(1) that any purported designation must be bona fide for the purpose of complying with the Commonwealth’s obligations imposed or exercising the rights conferred by Art 2. But I do not discern from the language of s 17(1) a legislative intent that a purported designation of a wetland will be ineffective to create a ‘declared Ramsar wetland’ if, at the time of the purported designation, the Commonwealth fails to describe the boundaries of the site precisely or to delimit the boundaries on a map.

129               In this case, the RIS enclosed with Minister’s letter of 2 June 1999 to the Bureau, and the accompanying maps, gave the co-ordinates for the approximate centre point of the Windella Ramsar site. The accompanying maps showed the boundaries of the site drawn in accordance with a scale and by reference to nearby water bodies. While the maps did not provide latitude and longitude readings, they displayed AMG co-ordinates on the axes. As Ms McDonald’s evidence showed, this information was sufficient for an interested person to ascertain, albeit by the application of some skill, the latitude and longitude co-ordinates for each of the four corners of the site. In my view, this information, together with the other material supplied by the Minister, was sufficient for the Ramsar Windella site to be ‘designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List’ within the meaning of s 17(1) of the EPBC Act.

130               I appreciate that on this construction of s 17(1) of the EPBC Act, an interested person would not necessarily be able to identify the exact boundaries of the Windella Ramsar site, in the manner of a survey, simply from the information provided by the Minister to the Bureau. Such a person could use that information to obtain the latitude and longitude co-ordinates and, for example by the use of GPS technology, accurately locate the four corners of the site on the ground to within a few metres. No doubt the inability to obtain completely precise information from the designation documentation might create some inconvenience, although there is nothing to suggest that the respondents suffered any difficulty by not being advised of exact boundaries of the Windella Ramsar site.

131               On the other hand, if the respondent’s submission is correct, the validity under Australian law of a purported designation of a wetland would depend on whether the Commonwealth fully complied with what might be said to be formal requirements at the time of designation. It would not be sufficient, so it would seem, for the Commonwealth subsequently to correct the defect by supplying additional information to the Bureau. It would follow that a defect in the description of the boundaries of the wetland site provided to the Bureau, or an administrative failure to include a map, would render a wetland of international significance devoid of legal protection. Doubtless the Commonwealth could begin the process afresh, but by then it might be too late.

132               In any event, I do not think that the assumption underlying the respondents’ submissions is sound. In my view, Art 2(1) of the Ramsar Convention does not require a Contracting Party to provide a precise description of the boundaries of a wetland and a map delimiting those boundaries as a pre-condition for a valid designation of a wetland under the Convention. Clearly enough a Contracting Party designating a wetland is obliged by the Ramsar Convention to provide the information specified in Art 2(1). But that does not mean that the consequence of a failure to provide the information concerning a wetland is that the designation process is ineffective to attract the rights and duties flowing from the inclusion of the wetland in the List.

133               As McHugh J explained in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 252-256, the correct approach to treaty interpretation, in the light of Art 31 of the Vienna Convention on the Law of Treaties, is to examine the ‘ordinary meaning’ of the treaty and the ‘context…object and purpose of the treaty’. Taking into account the context, object and purpose (at 255)

‘is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court were required to construe exclusively domestic legislation’.

It is also necessary to take into account any subsequent agreement between the parties regarding the interpretation of the treaty and any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation: Art 31(3) of the Vienna Convention.

134               Article 2(1) of the Ramsar Convention does not say that the boundaries of the designated wetland must be precisely described or delimited on a map at the time of designation. Nor does Art 2(1) say that a purported designation is ineffective, either to secure placement of the wetland on the List or to subject the Contracting Party to the obligations which flowed from inclusion of the wetland on the List, if the Contracting Party has not adequately described or delimited the boundaries of the site. Moreover, to interpret the Ramsar Convention as having this effect would, in my view, be difficult to reconcile with its object and purpose. The Ramsar Convention, as the recitals indicate, is designed to stem progressive encroachment on wetlands and to prevent the ‘irreparable’ loss of a resource of great economic, cultural, scientific and recreational value. While there are obvious advantages to ensuring that Contracting Parties define the boundaries of a designated wetland precisely, it would not enhance the object of the Ramsar Convention to withhold the conservation regime because of a failure to provide an adequate description of the boundaries of the designated wetlands.

135               This view of the Ramsar Convention is supported by the practice of the Contracting Parties. It is true, as the respondents pointed out, that successive Conferences have repeatedly urged Contracting Parties to submit complete maps and descriptions of wetlands at the time of designation, or as soon as possible thereafter. But as shown earlier in this judgment, there has never been any suggestion at the Conferences that a failure of the Contracting Party to provide a precise description of the boundaries of a designated wetland will result in the wetland being denied a place on the List or in the Contracting Party being relieved of its obligations under Art 3 of the Ramsar Convention. In short, the practice of the Contracting Parties is consistent with them regarding the obligation to provide precise boundary descriptions as important, but not going to the validity or effectiveness of a designation of a wetland for inclusion in the List.

136               I should make two further points. First, it is not to the point that the maps supplied to the Bureau did not correspond precisely to the map originally prepared by Mr Murphy. While the process that led to the designation of the Windella Ramsar site was less than meticulous in all respects, the question is simply whether the statute was complied with. In my view it was.

137               Secondly, in view of the conclusions I have reached, it is not necessary to consider whether the maps and information supplied to the Bureau by the Minister in June 1999 complied with the requirement in Art 2(1) of the Ramsar Convention that ‘the boundaries of each wetland shall be precisely described and also delimited on a map’. However, given the objectives of the Ramsar Convention and the proper approach to the interpretation of treaties, had it been necessary to do so I would have been prepared to find that the material supplied by the Minister did precisely describe the boundaries of the Windella Ramsar site and delimit them on a map. There is no reason why the required description cannot be provided to the Bureau in the form of a map. As I have found ([129] above), the material supplied by the Minister was sufficient for an interested person to ascertain, albeit by the application of some skill, the co-ordinates for each of the four corners of the site. This in my view was adequate to satisfy Art 2(1) of the Ramsar Convention.

PRIOR AUTHORISATION

138               The respondents submitted that s 16(1) of the EPBC Act did not apply to actions carried out on the Windella Ramsar site because Part 4 of the EPBC Act allowed them to take the action without an approval under Part 9: s 16(2)(b). As I have noted, the respondents contended that the various actions were within s 43A(1) of the EPBC Act, since

·        they were ‘specifically authorised under a law of the…State…before the commencement of the [EPBC] Act’, and

·        immediately before the commencement of the EPBC Act, no further environmental authorisation was necessary to allow the actions to be taken lawfully.

It followed, so the respondents argued, that s 16(1) did not apply their actions, even if they could be said to have or be likely to have ‘a significant impact on the ecological character of [the Windella Ramsar site]’.

Were the Respondents’ Actions Specifically Authorised Under State Law?

139               The question of specific authorisation under a law of the State requires reference to be made to the EPA Act [the Environmental Planning and Assessment Act 1979 (NSW)] and the terms of the Moree LEP [Moree Plains Local Government Plan] as in force on 16 July 2000, the date the EPBC Act came into force.

140               The objects of the EPA Act include encouraging the proper management, development and conservation of natural and artificial resources for the purpose of promoting the social and economic welfare of the community and a better environment; the protection of the environment; and ecologically sustainable development: subs 5(a)(i), (vi), (vii). Part 3 of the EPA Act provides for the making of an environmental planning instrument for the purposes of achieving any of the objects of the legislation: s 24. An ‘environmental planning instrument’ includes a local environment plan: s 4. Section 26(1) provides for the contents of an environmental planning instrument. Among other things, an instrument may make provision for protecting, improving or utilising, to the best advantage, the environment; controlling development; and protecting or preserving trees or vegetation.

141               A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area: s 54. (The term ‘council’ has the same meaning as in the Local Government Act 1993 (NSW): s 4.) Alternatively, the Minister may direct a council to prepare a plan: s 55. Following preparation of an environmental study (s 57), consultations with public authorities and others (s 62), public exhibition of the plan (s 66), consideration of submissions (ss 67, 68), and a report by the Director-General (s 69), the Minister may make the local environmental plan in the form submitted or subject to alterations (s 70).

142               If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies: s 76(1). If, however, the instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless such a consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument: s 76A(1). The term ‘development’ is defined broadly and includes the use of land and any other act, matter or thing referred to in s 26: s 4.

The Moree LEP was made by the Minister on 30 April 1995 pursuant to s 70 of the EPA Act. It was amended on several occasions prior to July 2000. The general objectives of the Moree LEP include encouraging the proper management, development and conservation of natural and man-made resources within the Moree Plains area: cl 2(a).

143               Clause 8 of the Moree LEP provides as follows:

‘For the purposes of this plan, land to which this plan applies is within a zone specified below if the land is shown on the map [deposited in the office of the council] in the manner specified below in relation to that zone.’

Clause 8 specifies eight zones, the first of which is:

‘Zone No 1(a) (General Rural) – edged heavy black and lettered “1(a)”.’

144               Clause 9 of the Moree LEP provides that development of land within a zone may be carried out without development consent, may be carried out only with development consent or is prohibited, as indicated under the relevant headings appearing in the Development Control Table set out under cl 9.

145               The Table sets out the provisions relating to each of the zones. Clause 2 of the Table, which applies to land zoned 1(a) (General Rural) is as follows:

‘Without development consent

Development for the purpose of:

agriculture (other than ancillary dwellings and intensive livestock keeping establishments)’.

Clause 3 requires development consent for any development not included in cll 2 or 4. Clause 4 specifies forms of development that are prohibited.

146               The Moree LEP contains a definition of ‘agriculture’ that is not particularly helpful for present purposes (cl 5). However, in December 1998 the Moree Plains Shire Council adopted and published a Position Statement on Agricultural Activities, which applies to all land in the Moree LEP that is zoned No 1(a) (General Rural). The Position Statement identifies a number of rural and agricultural uses and practices as legitimate practices within the Council’s area. These include ‘Clearing and cultivation of land’ and ‘Slashing and mowing vegetation’. There was no dispute that activities embraced by the Position Statement can be undertaken on land zoned 1(a) (General Rural) without development consent.

147               On the face of this material, the clearing and cultivation of Windella, including the Windella Ramsar site, was ‘an action [that] was specifically authorised under a law of a State’ before 16 July 2000, the date of commencement of the EPBC Act. Before that date, Windella was zoned No 1(a) (General Rural) under a local environmental plan made in accordance with the EPA Act. Under that plan, agriculture, including clearing and cultivation and slashing and mowing vegetation, could be undertaken without development consent. Section 76(1) of the EPA Act authorised a person to carry out development on land where an environmental planning instrument provided that the development can be carried out without the need for development consent. The definition of ‘action’ in s 523(1) of the EPBC Act is very broad and is certainly wide enough to include the clearing and cultivation of land. It would seem to follow that the respondents’ activities on the Windella Ramsar site were specifically authorised under a law of a State since those activities, can fairly be described as clearing and cultivating the land.

148               The Minister’s answer to this argument is that s 43A(1)(b) of the EPBC Act is satisfied only if the proposed action is identified with particularity both as to the type of action and to the land upon which it is to be carried out. Action is not ‘specifically authorised’, so the argument ran, if there is merely an authorisation of a general class of action which is not specific to the subject land.

149               Section 43A(1) speaks of an ‘action’ which was ‘specifically authorised under a law of the…State’ before the commencement of the EPBC Act. The term ‘action’, as already noted, is very broadly defined in s 523(1) of the EPBC Act to include a project, development undertaking or an activity or series of activities. The conduct of the respondents (or those of them responsible for the conduct) includes clearing and cultivation of the Windella Ramsar site. There is little doubt that this conduct constitutes ‘action’ for the purposes of s 43A(1).

150               The debate before me centred on the question of whether the Moree LEP ‘specifically authorised’ the respondents’ conduct. It seems to have been assumed in argument that if the answer is yes, the respondents’ actions could be said to have been specifically authorised ‘under’ a law of New South Wales, namely ss 70 and 76 of the EPA Act.

151               Whether this assumption is correct turns on the meaning of the word ‘under’. As I have noted, the word may have different meanings, depending on the context. In ordinary language, there is a distinction between something being authorised ‘by’ a statute and something being authorised ‘under’ a statute. As Black CJ observed in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409, at 413, the word ‘by’ is

‘plainly apt to apply to the common situation where a section of an Act specifically confers a power’.

His Honour considered that the word ‘under’ was apt to refer to a power conferred by a regulation which itself is made under a statute.

152               In Mercantile Mutual v ASC, the Court was concerned with an instrument that used the expression ‘by or under’, so that it was tolerably clear that ‘under’ was intended to be wider than ‘by’. Section 43A(1)(b) uses only the word ‘under’. Nonetheless, the choice of the word ‘under’ in s 43A(1)(b) seems to me to be intended to cover the case where the authorisation is ‘by’ a subordinate instrument, such as a local environmental plan, which is itself made pursuant to an enactment. This conclusion is consistent with the language in s 43(b) of the EPBC Act, which refers to a person being authorised to take action ‘by’ an instrument made or issued ‘under’ a particular act. It is also consistent with the evident object of s 43A(1), which is to preserve the specific entitlements of the occupier to use land as they existed at the commencement of the EPBC Act. The section does not require the occupier actually to have acted in relation to the land in a particular way at that date; it is enough that the action is ‘specifically authorised’ under a law of a State.

153               The language of s 43A(1)(b) of the EPBC Act implies that there is a distinction between an action which is authorised under an Act and one which is specifically authorised. It may well be that the Minister is correct to submit that an action is not ‘specifically authorised’ for the purposes of s 43A(1)(b) unless the relevant instrument (in this case the Moree LEP, read with s 76(1) of the EPA Act) authorises particular activities on a particular site. But that in my view does not mean that the authorisation must only relate to a single site or to a single activity on land. It is in my view enough that the authorisation covers a defined class of activities or identifiable land which includes the subject land.

154               In this case, Windella was zoned ‘Rural General’ by the Moree LEP, an instrument made pursuant to the EPA Act. The zoning of Windella was effected by a map which specifically identified land within the area of Moree Plains Shire Council that was zoned ‘Rural General’. The map showed that Windella was part of the land zoned ‘Rural General’. The Moree LEP identified particular activities that could be undertaken on land zoned Rural General without development consent. Section 76(1) of the EPA Act states that if the environmental planning instrument provides that ‘specified development’ may be carried out without development consent, a person may carry out the development in accordance with the instrument. In my opinion, at the relevant dates, the Moree LEP, read with s 76(1) of the EPA Act, specifically authorised agriculture on Windella, including the Ramsar Windella site. The agricultural activities so authorised included clearing and cultivation and slashing vegetation.

155               It follows that the actions of the respondents (or those of them responsible for clearing and cultivating the Ramsar Windella site) were specifically authorised under a law of the State, namely the EPA Act.

156               I should add that I would regard the de-silting of the Gingham channel running through the Windella Ramsar site, which was carried out in July and August 2002, as development for the ‘purpose of agriculture’, within the meaning of the Moree LEP. Thus, this work was also specifically authorised under the EPA Act.

Did the Respondents’ Actions Require Further Environmental Authorisation?

Native Vegetation Act

157               The Minister contended that even if the respondents’ actions had been specifically authorised under a State law before the commencement of the EPBC Act (s 43A(1)(b)), at that time a further environmental authorisation was necessary to allow the actions to be undertaken lawfully (s 43A(1)(c)). Thus, so the Minister argued, s 16(2)(b) of the EPBC Act was not satisfied and the respondents were subject to the prohibition in s 16(1).

158               Mr Fagan submitted for the Minister that environmental authorisation was required because of the operation of the Native Vegetation Act, which commenced on 1 January 1998 (that is, before the commencement date of the EPBC Act). He contended that s 21(2) of the Native Vegetation Act prohibited the clearing of the Ramsar Windella site without authority and that the respondents had obtained no such authority for their actions. Thus those actions were unlawful in the absence of further environmental authorisation.

159               Section 21(2) of the Native Vegetation Act provides as follows:

‘A person must not clear native vegetation on any land except in accordance with:

(a) a development consent that is in force, or

(b) a native vegetation code of practice.’

160               Section 21(2) does not apply to any land to which a regional vegetation management plan applies: s 21(1)(a). The evidence establishes that Windella is not subject to a regional vegetation management plan.

161               Section 21(2) also does not apply to ‘State protected land’. The term is defined to mean land identified in an order under s 7 of the Native Vegetation Act as State protected land and any land defined as protected land under the repealed s 21AB of the Soil Conservation Act 1938 (NSW) (‘Soil Conservation Act’) as in force immediately before its repeal by the Native Vegetation Act. However, s 22 of the Native Vegetation Act provides that a person must not clear State protected land except with a development consent that is in force.

162               ‘Development consent’ is defined to mean ‘development consent under Part 4 of the EPA Act’: s 4(1). However, for the purposes of the EPA Act, the State Minister is the consent authority for any development application made under the EPA Act for any clearing that requires development consent under Part 2 of the Native Vegetation Act: s 14.

163               Native vegetation is relevantly defined in s 6 as follows:

‘(1) In this Act, native vegetation means any of the following types of indigenous vegetation:

(a) trees,

(b) understorey plants,

(c) groundcover,

(d)               plants occurring in a wetland.

(2) For the purposes of this definition, groundcover means any type of herbaceous vegetation, but it is only to be regarded as native vegetation for the purposes of this Act if it occurs in an area where not less than 50% of the herbaceous vegetation covering the area comprises indigenous species. In determining that percentage, not less than 10% of the area concerned must be covered with herbaceous vegetation (whether dead or alive).’

164               Section 6(1)(d) of the Native Vegetation Act refers to ‘a wetland’. This expression is defined by s 4(1) to include:

‘any shallow body of water (such as a marsh, billabong, swamp or sedgeland) that is:

(a) inundated cyclically, intermittently or permanently with water, and

(b) vegetated with wetland plant communities.’

165               Section 6(1) also refers to ‘indigenous vegetation’. Vegetation is ‘indigenous’ for the purposes of the Native Vegetation Act if it is of a species of vegetation or if it comprises species of vegetation that existed in the State before European settlement: s 4(2).

166               The evidence as to whether the Ramsar Windella site was ‘State protected land’ was incomplete. Mr Christmas of the DIPNR, gave evidence that the Gingham watercourse (not the Gingham channel) had been gazetted as a ‘prescribed stream’ in 1948. Since s 21AB(1) of the Soil Conservation Act defined ‘protected land’ to include any land within 20 metres of the bed or bank of a prescribed stream, land within 20 metres of the Gingham watercourse would be protected land. Although Mr Christmas seemed to assume that Windella would be caught by this definition, in the absence of evidence identifying the location of the ‘bed’ or ‘bank’ of the Gingham watercourse, I could not make any such finding. Indeed, there might be an issue as to whether the Gingham watercourse, which Mr Graham, for example, described as covering the whole flood plain, has a bed and banks.

167               In the end, it does not matter whether the Windella Ramsar site was ‘State protected land’ or not. If it was not, s 21(2) applied to the site. If it was, the evidence satisfies me that no development consent was in force at the relevant time authorising clearing of the site. Thus if part of the site was protected State land it would seem that authorisation was required on 16 July 2000 (the date of commencement of the EPBC Act) for clearing of that portion of the site.

168               The respondents nonetheless argued that s 21(2) of the Native Vegetation Act did not apply to the Windella Ramsar site at the relevant time. This was because

• the definition of ‘native vegetation’ in s 6(1) was not satisfied; and
• in any event, s 6(2) excludes herbaceous vegetation from ‘native vegetation’ if less than 50 per cent of the herbaceous vegetation covering the area comprises indigenous species.

169               Section 6(1) defines ‘native vegetation' to mean any of four types of indigenous vegetation, namely trees (s 6(1)(a)), understorey plants (s 6(1)(b)), groundcover (s 6(1)(c)) and plants occurring on a wetland (s 6(1)(d)). Independently of s 6(2), it is clear that there is ‘native vegetation on…land’ if any one of the four nominated types of indigenous vegetation is present.

170               The evidence shows that on 15 October 2002 the Windella Ramsar site had ‘plants occurring on a wetland’ in the sense that there were species that are in fact found on wetlands. For example, Dr Bacon, who visited the site on that date, identified lignum and Typha (or cumbungi), both native wetland plants, as present on the site, albeit to a diminished extent than in earlier times. He also identified water couch and marsh clubrush on the site, both of which are also native wetland plants.

171               Mr Littlemore did not dispute this evidence, but submitted that s 6(1)(d) was not satisfied because the Windella Ramsar site was not a ‘wetland’ as defined in the Native Vegetation Act. It is by no means clear that s 6(1)(d) is satisfied only where the particular plants under consideration are not only found generally on wetlands but are actually located on specific land that is a ‘wetland’ for the purposes of the Native Vegetation Act. Section 6(1) is concerned with ‘types of indigenous vegetation’. This suggests that s 6(1)(d) is concerned with the general characteristics of the plants (that is, that they occur in a wetland) rather than imposing a requirement that the particular plants occur in a ‘wetland’ as that term is defined in the Native Vegetation Act.

172               Be that as it may, I think that the evidence establishes that the Ramsar Windella site is a ‘wetland’ as defined in s 4(1) of the Native Vegetation Act. The statutory language is somewhat odd as it can literally be read as referring to a body of water that is itself periodically or permanently inundated with water. A more sensible reading is a shallow body of water that can be permanent, or the product of cyclical or intermittent inundations. This reading is supported by the specific examples of shallow bodies of water given in the definition. For example, the Macquarie Dictionary definition of a ‘billabong’ is a ‘waterhole in a river or creek that dries up outside the rainy season’. The definition of ‘wetland’ can hardly have been intended to apply only to a ‘permanent’ billabong.

173               The evidence satisfies me that the Ramsar Windella site answers the description of a shallow body of water that is the product of cyclical or intermittent inundations. It is true that the construction of the Copeton Dam has reduced the frequency of natural inundations of the Windella Ramsar site. But such inundations occur intermittently, as the evidence of Mr McCosker demonstrates. Indeed, the most recent inundation took place during the currency of these proceedings. Rain which commenced on or about 10 January 2004 resulted in floodwaters from the Gwydir River system inundating the site from late January to at least the second week of February 2004.

174               In any event, the definition of ‘wetland’ does not require the inundation to be the result of rain on or near the site or other natural causes. Inundations caused by environmental releases of water from the Copeton Dam can provide the inundations contemplated by the definition of ‘wetland’. The evidence shows that such releases occur periodically. In my opinion, it is not to the point that the Windella Ramsar site has an artificial watercourse running through it. If the site comprises a shallow body of water that is the product of cyclical or intermittent inundations, it is a ‘wetland’ for the purposes of the Native Vegetation Act.

175               It follows that in October 2002 and until clearing took place, the Windella Ramsar site was a wetland which was vegetated with wetland plan communities and thus had ‘plants occurring in a wetland’ within the meaning of s 6(1)(d) of the Native Vegetation Act.

176               For reasons I have already given, the site also had indigenous vegetation in the form of trees, namely coolabah and casuarina. Thus the Ramsar Windella site also had indigenous trees within the meaning of s 6(1)(a) of the Native Vegetation Act.

177               It may be accepted, as Mr Littlemore submitted, that lippia infested much of the site and that it exceeded 50 per cent of herbaceous vegetation covering the area. It follows that, by reason of s 6(2) of the Native Vegetation Act, there was no ‘groundcover’ within the meaning of s 6(1)(c) on the Windella Ramsar site at the relevant times. But this does not mean that there was no ‘native vegetation’ on the site, since there were trees and plants occurring in a wetland. Section 6(2) is concerned with the definition of ‘groundcover’ for the purposes of s 6(1)(c). It is not intended to produce the result that if less than 50 per cent of the herbaceous vegetation covering the area comprises indigenous species, there can be no ‘native vegetation’ on the site regardless of the existence of trees or plants occurring in a wetland.

178               I conclude, therefore, that at the relevant time the respondents (or anyone else) required development consent under the Native Vegetation Act before they could clear the native vegetation on the Windella Ramsar site. The development consent required under the Native Vegetation Act is an ‘environmental authorisation’ for the purposes of s 43A(2) of the EPBC Act. This is because it is an authorisation under a law of New South Wales (the Native Vegetation Act) that plainly has the object of protecting the environment or promoting the conservation and ecologically sustainable use of natural resources. Mr Littlemore did not submit to the contrary.

179               Accordingly, the actions of the respondents in clearing the Windella Ramsar site do not fall within s 43A(1)(c) of the EPBC Act unless they can invoke some other basis for establishing that their actions were specifically authorised under State law before the commencement of the EPBC Act and that no further environmental authorisation was required to allow the action to be taken lawfully.

180               I think the position is different, however, with respect to the desilting of the Gingham channel that took place in July or August 2002. The channel is of course used as a watercourse for water released from the Copeton Dam for agricultural purposes. The dredging of the existing channel is not properly described as ‘clear[ing] native vegetation on any land’ even if some native vegetation, along with weeds, has to be removed in the course of desilting. The evidence does not suggest that the desilting had the effect of widening the channel. It does, however, suggest that desilting of a stock and domestic channel must be regularly undertaken to preserve its function.

Noxious Weeds Act