LANSEN v MINISTER FOR ENVIRONMENT AND HERITAGE

NTD 4 of 2007

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.

This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au.

Lansen v Minister for Environment and Heritage [2008] FCA 903

The applicants are seven native title claim groups with native title claims under the Native Title Act 1993 (Cth) over land in the vicinity of the McArthur River Mine near Borroloola in the Gulf Region of the Northern Territory.

The operator of that mine, McArthur River Mines (MRM) proposes to alter its operations from an underground mine to an open pit mine.  That will require a significant diversion of the McArthur River.

On 4 March 2003, the Minister for the Environment and Heritage found that proposal to be a “controlled action” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).  Hence it required his approval.  The Minister’s concerns particularly related to the impact of the proposal upon migratory bird species by its effect upon the flow and delta of the McArthur River, and upon the endangered species called the freshwater sawfish by affecting its habitats and its capacity to migrate up and down the river.

Before the approval, the potential environmental impacts of the proposal were to be assessed and the results of the assessment reported to the Minister.  The assessment process was undertaken through the Northern Territory Minister for the Environment and Heritage, in accordance with a Bilateral Agreement between the Commonwealth and the Northern Territory which came into force on 19 March 2003.  The assessment process involved the preparation of an environmental impact statement, its exposure to public comments, and MRM’s response to the public comments.  The results of that process were conveyed to the Commonwealth Minister by the NT Minister on 25 February 2006 by an Assessment Report.  The Minister then asked for further information from MRM concerning the potential impacts of the proposal upon the freshwater sawfish and migratory bird species and how those impacts might be better minimised and monitored.

After receiving the response, the Minister decided to approve the proposed action subject to a number of conditions.

The applicants have challenged the validity of that decision on four main grounds:

(1)               the assessment of the environmental impacts of the proposal should have been made, but was not made, under Part 8 of the EPBC Act rather than under the Bilateral Agreement because the Agreement did not come into operation until after the Minister decided that the proposal was a “controlled action” under the EPBC Act;

(2)               the Assessment Report was not a valid assessment report to empower the Minister to make a decision whether or not to approve the proposal because it did not contain sufficient information to enable the Minister to decide whether or not to approve the proposal;

(3)               the Minister was required to, but did not, take into account the conditions imposed by the Northern Territory on the proposal, relating generally to the mine development but including its environmental impacts; and

(4)               the Minister was required to, but did not, give effect to the principles of ecologically sustainable development, in particular the precautionary principle, as he was required to do by the EPBC Act, in granting his approval to the proposal.

The Court has concluded that:

(1)               the assessment process of the proposal under the Bilateral Agreement was the correct one, as that agreement came into operation before the Minister had selected an assessment process under Part 8 of the EPBC Act;

(2)               the Assessment Report was a valid assessment report because it contained an adequate description of the material in the environmental impact statement, of the public comments, and of MRM’s response to the public comments, even though the Report itself said that its contents were not themselves sufficient to decide that the environmental impacts of the proposal on the freshwater sawfish and migratory bird species would not be, or only marginally be, affected;

(3)               the Minister had not taken into account the conditions imposed by the Northern Territory upon its approval to the mine redevelopment, but in the circumstances that failure did not make the Minister’s decision invalid because consideration of the NT conditions could not have made a material difference to the Minister’s decision, including on the conditions he imposed;

(4)               the Minister had not failed to take into account the precautionary principle in making his decision.

As the contentions of the applicants failed to show that the Minister’s decision is invalid, the application is dismissed.