FEDERAL COURT OF AUSTRALIA

Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    If any party wishes to submit that there should not be costs orders in favour of the first and second respondents or that other costs orders should be made he or it should file and serve short written submissions (of no more than three pages) on or before 22 May 2014 and any other party which wishes to do so should file short answering submissions (of no more than three pages) on or before 29 May 2014.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The second respondent (“Venture Minerals”) wishes to develop a hematite mine. In order to do so it required approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”). The necessary approval was given in August 2013 by the then Minster for the Environment, Heritage and Water. The Department has since been renamed and the first respondent is the Minister responsible for that renamed Department.

2    The applicant (“Tarkine National”) has applied to the Court for judicial review of the Minister’s decisions on a number of grounds. It is common ground that Tarkine National has standing to prosecute the proceeding.

3    Venture Minerals’ proposal was assessed by the Tasmanian Environment Protection Authority (“the EPA”) under the Environmental Management and Pollution and Control Act 1994 (Tas) (“the EMPC Act”). This occurred pursuant to a bilateral agreement between the Commonwealth Minister and his Tasmanian counterpart which was entered into under s 45 of the EPBC Act. One of the grounds on which Tarkine National challenges the Minister’s decision is that this purported agreement is invalid. By consent of the other parties the State of Tasmania was added as a respondent to the proceeding so that it could make submissions relating to the legal efficacy of the agreement.

THE LEGISLATIVE SCHEME

4    The legislative scheme under which the impugned assessment and grant of approval occurred covers a broad area of environmental protection and is of some complexity. It has recently been outlined in detail by a Full Court of this Court in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 at 307-313 [33]-[69]. See also Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at 27-31 (Moore and Lander JJ).

5    That outline need not be repeated in full. The following provisions are relevant for present purposes.

6    Part 3 of the EPBC Act proscribes certain activities which may have an adverse impact on the national environment. Sections 18 and 18A appear in this Part. Section 18(3) provides that:

“A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened species included in the endangered category; or

(b)    is likely to have a significant impact on a listed threatened species included in the endangered category.”

A breach of this provision attracts civil penalties. Section 18A goes further and makes it a criminal offence to take action which results or will result in a significant impact on a threatened species. It was uncontentious that Tasmanian devils, wedge-tailed eagles and spotted-tailed quolls were to be found in the area near the proposed mine and that they were listed threatened species.

7    Section 19(1) provides that ss 18 and 18A do not apply if approval for the action has been given and is in operation under Part 9 of the Act.

8    Sections 20 and 20A also appear in Part 3. They follow a similar pattern by proscribing action in relation to listed migratory species and creating civil and criminal penalties for taking action that may have an adverse impact on such species. These provisions do not apply if approval of the action has been given under Part 9 of the Act.

9    Part 7 of the EPBC Act is entitled “Deciding whether approval of actions is needed”. Section 67A provides that:

“A person must not take a controlled action unless an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the relevant provision of Part 3.”

10    “Controlled action” is defined in s 67 as “action that a person proposes to take … if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be … prohibited by the provision.” Such a provision is defined as a “controlling provision” for the action.

11    Section 68(1) requires that a person, who is proposing to take an action that the person thinks is or may be a controlled action, refer the proposal to the Minister in order that the Minister may decide whether or not the action is a controlled action.

12    Upon referral, s 75(1) requires the Minister to decide whether the relevant action is a controlled action and, if so, which provisions of Part 3 are controlling provisions for the action. All parties accepted that the Minister had decided that Venture Minerals’ mining proposal was a controlled action and that the relevant controlling provisions were ss 18, 18A, 20 and 20A of the Act.

13    Part 8 of the EPBC Act deals with the assessment of “relevant impacts” of the action on environmental interests protected by Part 3 of the EPBC Act. The meaning of the word “impact” is explained in s 527E. That section provides that:

“(1)    For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:

(a)    the event or circumstance is a direct consequence of the action; or

(b)    for an event or circumstance that is in an indirect consequence of the action – subject to subsection (2), the action is a substantial cause of that event or circumstance.

(2)    For the purpose of paragraph (1)(b), if:

(a)    a person (the primary person) takes an action (the primary action); and

(b)    as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and

(c)    the secondary action is not taken at the direction or request of the primary person; and

(d)    an event or circumstance is a consequence of the secondary action;

then that event or circumstance is an impact of the primary action only if:

(e)    the primary action facilitates, to a major extent, the secondary action; and

(f)    the secondary action is:

(i)    within the contemplation of the primary person; or

(ii)    a reasonably foreseeable consequence of the primary action; and

(g)    the event or circumstance is:

(i)    within the contemplation of the primary person; or

(ii)    a reasonably foreseeable consequence of the secondary action.”

14    Subject to an important exception contained in s 83 of the EPBC Act, Part 8 requires that the Minister undertake the necessary assessments. Section 83 relieves the Minister of this obligation in certain circumstances. Section 83(1) provides that:

(1)    This Part does not apply in relation to an action if:

(a)    the action is to be taken in a State or self-governing Territory; and

(b)    a bilateral agreement between the Commonwealth and the State or Territory declares that actions in a class that includes the action need not be assessed under this Part; and

(c)    the provision of the bilateral agreement making the declaration is in operation in relation to the action.

…

Note 2A:    An action will be in a class of actions declared not to need assessment under this Part only if the action has been assessed in a manner specified in the bilateral agreement.”

15    Section 3(2) of the EPBC Act identifies intergovernmental co-operation through bilateral agreements as one of a number of measures adopted in the Act in order to achieve its objects. The bilateral agreements referred to in s 83 are dealt with in Part 5 of the EPBC Act. Section 44 identifies the objects of Part 5. They include ensuring “an efficient, timely and effective process for environmental assessment and approval of actions …”.

16    Section 45(1) empowers the Minister, on behalf of the Commonwealth, to enter into a bilateral agreement. Section 45(2) defines a bilateral agreement as a written agreement between the Commonwealth and a State that, inter alia, ensures “an efficient, timely and effective process” of the kind referred to in s 44.

17    Section 47 is linked to s 83. It provides that:

“(1)    A bilateral agreement may declare that actions in a class of actions identified wholly or partly by reference to the fact that they have been assessed in a specified manner need not be assessed under Part 8.

…

(2)    The Minister may enter into a bilateral agreement declaring that actions assessed in a specified manner need not be assessed under Part 8 only if he or she is satisfied that assessment of an action in the specified manner will include assessment of the impacts the action:

(a)    has or will have; or

(b)    is likely to have;

on each matter protected by a provision of Part 3.

…

(4)    If a bilateral agreement has (or could have) the effect that an action need not be assessed under Part 8 but the action must still be approved under Part 9, the agreement must provide for the Minister to receive a report including, or accompanied by, enough information about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action.”

18    The assessment of the action proposed by Venture Minerals was undertaken pursuant to such a bilateral agreement between the Commonwealth and the State of Tasmania. An assessment report was prepared pursuant to the agreement.

19    The EPBC Act required the Minister to “decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action” within 30 business days after he received the assessment report: see s 130(1), (1A), (1B) and (2).

20    By section 133(1) of the EPBC Act the Minister was empowered to approve the taking of the proposed action. He could do so after he had received “the assessment documentation”. This term is defined in s 133(8) to mean, inter alia, an assessment report.

21    Section 134(1) of the EPBC Act empowered the Minister to attach conditions to any approval of action which he or she granted. By s 134(4) the Minister was required, when deciding whether or not to attach a condition to an approval, to have regard to certain matters. This subsection provided that:

“In deciding whether to attach a condition to an approval, the Minister must consider:

(a)    any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self-governing Territory or another law of the Commonwealth on the taking of the action; and

(aa)    information provided by the person proposing to take the action or by the designated proponent of the action; and

(b)    the desirability of ensuring as far as practicable that the condition is a cost-effective means for the Commonwealth and a person taking the action to achieve the object of the condition.”

22    Section 134(5) provided that:

“A failure to consider information as required by paragraph (4)(aa) does not invalidate a decision about attaching a condition to the approval.”

23    Section 136 of the EPBC Act prescribed a number of conditions which the Minister was bound to take into account when deciding whether or not to approve the taking of the action. Relevantly, for present purposes, s 136 provided that:

“Mandatory considerations

(1)    In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:

(a)    matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;

(b)    economic and social matters.

…

(2)    In considering those matters, the Minister must take into account:

(a)    the principles of ecologically sustainable development; and

(b)    the assessment report (if any) relating to the action; and

…

(e)    any other information the Minister has on the relevant impacts of the action …; and

(f)    any relevant comments given to the Minister in accordance with an invitation under section 131 or 131A; and

…”

THE FACTUAL BACKGROUND

24    On 4 April 2012 Venture Minerals referred to the Minister an action for the development of a hematite mine near Riley Creek in the Tarkine area of North Western Tasmania. It did so pursuant to s 68 of the EPBC Act.

25    On 24 July 2012 the then Minister determined that the proposed action was a controlled action pursuant to s 75 of the EPBC Act, subject to the following controlling provisions:

    Sections 18 and 18A (listed threatened species and ecological communities); and

    Sections 20 and 20A (listed migratory species).

26    By letter dated 6 August 2012, the Tasmanian Government advised that the proposed action would be assessed by Tasmania in a manner specified in Schedule 1 of a bilateral agreement between the Commonwealth and Tasmania. That agreement related to environmental impact assessments.

27    The assessment process was conducted under the EMPC Act. The processes prescribed by the EMPC Act included consideration of the proposal by the West Coast Council (“the Council”). The Council was required, by s 25(1) of the EMPC Act, to refer the application to the EPA Board (“the Board”). It did so on 8 November 2012.

28    On 15 May 2013 the Board provided the Department with a copy of its final assessment report. Thereupon the approval process, provided for under Part 9 of the EPBC Act, commenced: see s 130(1B)(a) of the EPBC Act.

29    The Board recommended to the Council that certain conditions be attached to any approval of the proposal. On 21 May 2013 the Council approved the proposal subject to the conditions which the Board had recommended.

30    On 5 June 2013 Tarkine National lodged an appeal against the Council’s decision with the Tasmanian Resource Management and Planning Appeal Tribunal (“the Tribunal”).

31    On 30 July 2013 the Minister proposed to approve the taking of the proposed action subject to certain conditions. In accordance with the EPBC Act he consulted two fellow Ministers and Venture Minerals: see ss 131 and 131AA of the EPBC Act.

32    On 3 August 2013 the Minister decided to approve the proposal. More specifically he decided “to approve, subject to conditions, the taking of the proposed action for the purposes of sections 18 and 18A and sections 20 and 20A of the EPBC Act.” He did so subject to conditions.

33    Conditions 24 and 28 were related to the protection of endangered species and provided for the payment of compensation in the event that Tasmanian devils, wedge-tailed eagles and spotted-tail quolls were killed during mine operations. The conditions were in the following terms:

“24.    To compensate for unavoidable impact to the Tasmanian devil through roadkill, the person taking the action must contribute no less than $144 000 (GST exclusive) in funding to the Save the Tasmanian Devil Program, in accordance with any approved Tasmanian devil recovery plan and explicitly for the purpose of “Maintenance of the Tasmanian devil Insurance Population”.

At least 50% of this sum must be contributed within twelve (12) months of commencement of the action, and the balance within two (2) years of commencement of the action.

…

28.    In the event of the following excess EPBC species roadkill details over any 12 month period recorded in accordance with Condition 19, occurring within the mine site, or caused by an authorised vehicle travelling to or from the mine site, the following associated contingency compensation response must be undertaken:

a.         for each wedge-tailed eagle death beyond (1) in any twelve (12) month period, the person taking the action must contribute to regional or statewide wedge-tailed eagle monitoring strategies as agreed by the department.

Note: The contribution can be expected to be in the order of $20 000.

b.    for each spotted-tailed quoll death beyond one (1) in any twelve (12) month period, the person taking the action must fund three (3) month program of feral dog and / or cat trapping and / or shooting; and

c.         for each Tasmanian devil death beyond three (3) in any twelve (12) month period, the person taking the action must contribute an additional $48 000 (GST exclusive) in funding to the Save the Tasmanian Devil Program Appeal (or other conservation organisation approved by the minister), explicitly for the purpose of “Maintenance of the Tasmanian devil Insurance Population”.”

34    On 4 September 2013 the Minister provided a statement of reasons for his decision.

35    On about 24 September 2013 the Tribunal upheld the Council’s decision subject to certain variations to the conditions which the Council had approved.

THE REVIEW GROUNDS

36    Tarkine National relied on four grounds. They were that:

    The Minister was required, by s 134(4)(a) of the EPBC Act, but did not, have regard to the conditions which it was likely that the Tasmanian Resource Management and Planning Appeal Tribunal (“the Tribunal”) would impose on the development (Ground 1).

    The project should have been, but was not, assessed under Part 8 of the EPBC Act. The alternative arrangement, pursuant to which the assessment was made under the EMPC Act was flawed because, either the bilateral agreement under which the assessment was made was not authorised by s 83 of the EPBC Act or, if it was, the assessment did not proceed in the manner prescribed by Schedule 1 of the Agreement. (Ground 2A).

    The Minister was required, but failed, to have regard to the “cumulative impacts” of the project and environmental imperatives protected by Part 3 of the EPBC Act. (Ground 3).

    Conditions 24 and 28 which the Minister attached to the approval were not authorised by s 134 of the EPBC Act. (Ground 4).

GROUND 1 – CONDITIONS

37    As has been seen s 134 of the EPBC Act empowers the Minister to attach conditions to any grant of approval for proposed action. In deciding whether to attach a condition, s 134(4)(a) stipulates that the Minister “must consider … any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State …”. A failure by the Minister to comply with this stipulation may render any resulting decision invalid: see Lansen at 32.

38    In making his decision the Minister had regard to conditions which had been imposed by the Council at the direction of the EPA when the Council gave approval for the development of the Riley Creek Mine. Tarkine National had, however, lodged an appeal from the Council’s decision. A possible outcome of the appeal was that of the conditions imposed by the EPA might be varied. The Department was aware of the appeal and recommended to the Minister that he defer making his decision until after the Tribunal had made its decision. The Minister rejected this recommendation.

39    The Tribunal hearing took place over three days in the week before the Minister made his decision. The Tribunal then reserved its decision. Its decision was ultimately handed down in September 2013, well after the Minister’s decision had been made and after he had published his reasons. The Tribunal imposed four additional conditions on the development of the mine. It also varied one of the conditions imposed by the Council. Despite these changes it dismissed Tarkine National’s appeal.

40    Expert evidence was called before the Tribunal by both Tarkine National and Venture Minerals. This evidence related, among other things, to erosion and sediment control and the protection of endangered species. There was a strong measure of agreement between the experts called on either side in relation to erosion and sediment control. There were however differences at the margins between the two experts. The Tribunal concluded:

“that [erosion and sediment control] issues represent a significant environmental issue in the operation of the mine, requiring careful management and monitoring. There is an overwhelming degree of consensus between the experts exhibiting the fact that this issue (or more accurately these issues) require management, but that they are manageable; and that the [erosion and sediment control] Plan requires further work. The Tribunal so finds. An [erosion and sediment control] Plan will provide a foundation for appropriate management of these issues. The Tribunal has framed specific conditions dealing with this in a way which makes compliance a condition of approval.”

41    In its reasons the Tribunal recorded that Venture Minerals had:

“… conceded some matters but contends that the approval ought to stand, subject to those concessions. In particular it concedes that there ought to be a condition requiring the cartage of ore to occur in daylight hours to minimise the risk of harm through road kill to the Tasmanian Devil. It has also proposed to modify sediment and erosion plan which accords with expert evidence as to that issue.”

42    Two of the new conditions (E1 and DC1) related to sediment and erosion. Condition E1 required Venture Minerals to prepare and obtain approval of an Erosion and Sediment Control Plan, a Stormwater Management Plan and Progressive Rehabilitation Plan. Condition DC1 required Venture Minerals to provide a Decommissioning and Rehabilitation Plan to deal with erosion and sediment control.

43    New condition E2 required the preparation, by Venture Minerals, of what was called “a Flora and Fauna Management Plan”. The plan was to contain subsidiary plans relating to the Tasmanian devil, the spotted-tailed quoll and roadkill minimisation and impose a requirement that the cartage of ore on the road leading from the mine site was only to occur during certain hours.

44    New condition FF4 dealt with Road Kill Management and Monitoring. It limited the destinations to which vehicles leaving the mine site could travel, restricted the speed of these vehicles, required that mine staff travel to and from the mine by bus and provided for the removal and recording of roadkill.

45    The original condition G6 was that: “[t]he activity must be carried out in accordance with the commitments contained in Attachment 2 unless otherwise specified in these conditions or unless otherwise approved in writing by the Director.” The only change made by the Tribunal was the addition of the words “and each of them” after the word “commitments”. This amendment was of no material significance.

46    The Tribunal referred to these changes as “a refinement” of the conditions imposed by the Council which were “intended to enhance the attainment of environmental objectives, which were universally held.”

47    Tarkine National complained that the Minister had erred by failing to have regard to the conditions which, it submitted, were likely to have been imposed by the Tribunal. It directed attention, in particular, to the additional conditions which related to the preservation of water quality (Conditions E1 and DC1). These conditions had been imposed partly as a result of concurring expert evidence called by the opposing parties. The Minister was not aware of this evidence at the time at which he had made his decision. Had he acted on his Department’s advice and delayed his decision until after the Tribunal’s decision was delivered he would have been aware that the evidence had been accepted and would have been bound (so it was contended) to have regard to the additional conditions in making his own decision. Alternatively, it was submitted, he should have acquainted himself with the evidence and anticipated that it might lead, as it did, to additional conditions being imposed and had regard to those anticipated conditions.

48    The obligation imposed on the Minister by s 134(4)(a) of the EPBC Act requires him or her to have regard, not just to conditions imposed on an approval by a State environmental body, but also any other conditions imposed which “the Minister considers are likely to be imposed” under a State law. The obligation therefore extends, potentially, to conditions imposed by the Tribunal under the EMPC Act.

49    Those conditions had not been imposed at the time the Minister made his decision. The obligation, for which Tarkine National contends, could thus only have fallen on the Minister had he considered that the additional conditions were “likely to be imposed.”

50    One may readily envisage circumstances in which a Minister could come to such a view. A State authority may have made a decision to approve a project and given reasons for that decision which referred to conditions which it considered should attach to any such approval but orders giving effect to the reasons may not have been made at the time at which the Minister makes his or her decision. Draft orders may have been published with a view to the parties having the opportunity to comment. In such circumstances the Minister may well consider that such conditions are likely to be imposed. It is, on the other hand, by no means as easy to contemplate an obligation falling on the Minister which might involve him speculating on the likely outcome of a Tribunal hearing on the basis of evidence given to the Tribunal.

51    A narrower reading of the provision is suggested by the Explanatory Memorandum for the Bill which amended s 134(4)(a) by adding the words “or the Minister considers are likely to be imposed”. The memorandum explained the purpose of the amendment as being:

“Further, to avoid potential duplication or inconsistency, the Minister may require a proponent to comply with conditions contained in an instrument which has not yet come into force. This avoids the need to repeat conditions for projects subject to multiple approvals.”

In such circumstances the Minister will not be required to speculate about what conditions might or might not be imposed. They will be available to him in writing.

52    Support for a narrower construction is also to be found in the reasons of Besanko J in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2012) 291 ALR 314 at 352 where his Honour accepted a submission that the “law” referred to in s 134(4)(a) was a law of a State which was in force at the time at which the Minister made his decision and then continued:

“The apparent purpose of the section is to avoid the duplication of conditions, or inconsistency between conditions. The conditions may be specified in an instrument (including an authorisation) made or granted under a law of another body politic or another law of the Commonwealth (s 134(3)(c) of the EPBC Act). One would not ordinarily expect the minister to be required to speculate about the passage of a law which contains conditions, or under which an instrument may be made or granted which contains conditions.”

An appeal from his Honour’s decision was dismissed: see Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301. The Full Court was not called on to deal with this issue. It did however observe that s 134(4)(a) was “specific and restrictive, and deliberately so”: see at 318 [96].

53    In my view s 134(4)(a) requires the Minister to have regard to conditions which have been imposed under State law and to conditions which have been framed but have yet to be imposed. In the case of conditions falling within the latter category the obligation will only arise if the Minister considers, on the material available to him or her, that it is likely that the process for imposition will be perfected under State law.

54    Tarkine National argued that the Minister should have accepted that it was likely, as a result of the evidence and concessions referred to by the Tribunal in its reasons, that the additional conditions would be imposed by the Tribunal. This argument confronts a number of difficulties. The first is that, although the expert evidence was given before the Minister made his decision, he was not made aware of that evidence prior to him approving the project. There was no evidence about when the concessions, made by Venture Minerals and referred to in the Tribunal’s reasons, were made. Furthermore the Minister is only obliged, by s 134(1)(a), to have regard to “relevant conditions” which he or she “considers” are likely to be imposed under State law. The conditions relating to erosion and sediment control were drafted by the Tribunal after it had heard and accepted the expert evidence which was substantially, but not totally, ad idem. It is hard to see how a Minister could form a judgment as to whether a condition was “relevant” to his or her decision making without knowing the terms of the condition or the substance of the condition. Nor could the Minister form a judgment about the likelihood of the condition being imposed without such knowledge. The Minister did not know, and could not, at the time at which he made his decision, have known more than the subject matter with which the additional conditions deal. Even had he done so (which he had not) he could not have known the terms in which those conditions would be imposed by the Tribunal more than a month later. As a result, the Minister cannot be said to have considered that it was likely that the additional conditions, actually imposed by the Tribunal, were likely to be imposed. It follows that he was not obliged to have regard to them.

55    In any event, Tarkine National has failed to establish that, had the Minister been aware of the additional conditions, he would have considered them to have had any material bearing on the outcome of his own decision making process. In this context it may also be observed that conditions E1 and DC1 could only have been indirectly relevant to matters of national environment significance and that the Minister did have regard to issues related to sediment and erosion in reaching his decision.

56    Ground 1 has not been made out.

GROUNDS 2A AND 3

57    These two grounds were argued together.

58    Ground 2A was advanced on a number of alternative bases. It is in the following terms:

“2A    The decision was not authorised by s 133 of the Act because:

(a)    no assessment was conducted under Pt 8 of the Act; and

(b)    s 83 of the Act did not cause Pt 8 to not apply in relation to the action, because:

(i)    the action has not been assessed in the manner described in Schedule 1 to the Agreement between the Commonwealth of Australia and the State of Tasmania under Section 45 of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 Relating to Environmental Impact Assessment (the Bilateral Agreement), within the meaning of para 9.1 of the Bilateral Agreement;

(ii)    alternatively, the Bilateral Agreement is not a bilateral agreement within the meaning of s 83 of the Act, or alternatively was not in operation for the purposes of that section, because:

(A)    it was not open to the Minister to be satisfied that assessment of an action in the manner specified in the Bilateral Assessment would include assessment of the impacts the action has or will have, or is likely to have, on matters protected by Part 3 of the Act, as required by s 47 of the Act;

(B)    alternatively, the Minister failed to consider whether an assessment under the EMPC Act would assess all impacts on matters protected by Part 3, including cumulative impacts.”

59    Ground 3 is related to Ground 2A. In it Tarkine National alleges that the Minister failed to take into account the cumulative impact of what was described as “all relevant projects or actions in the relevant area, the impact of which might accumulate with [Venture Minerals’ proposed] action.”

60    There was no dispute that the assessment of Venture Minerals proposed action was not undertaken pursuant to Part 8 of the EPBC Act. Such assessment as was undertaken took place under the EMPC Act. The first strand of Tarkine National’s argument was that the agreement between the Commonwealth and Tasmanian Government pursuant to which the assessment was made was not a bilateral agreement within the meaning of the EPBC Act. Alternatively, it was put that Venture Minerals’ proposed action was not assessed in the way prescribed in the bilateral agreement. This was because the assessment did not deal with the cumulative impacts of other offsite projects. The consequence of either error was, so it was contended, that s 83 did not operate to disapply the operation of Part 8 of the EPBC Act.

61    Before dealing with these contentions it is necessary to elaborate on the process of evaluation which preceded the making of the Minister’s decision.

62    The Land Use Planning and Approvals Act 1993 (Tas) required Venture Minerals to make an application to the Council, as planning authority, for a permit to develop its proposed mine. Upon receipt of the application the Council was obliged, by s 25(a) of the EMPC Act, to refer the application to the Board. Once the Board determined to undertake an assessment it was required to do so in accordance with prescribed principles and the provisions of Division 1A of the EMPC Act and in consultation with the Council: see s 25(2)(a). Because the Board embarked on this course the Council was relieved of any obligation to assess any matter which was dealt with in the Board’s assessment: see s 25(2)(f). On completing its assessment the Board was required to notify the Council of any condition which the Board required to be attached to any permit granted by the Council and of the reasons for requiring the imposition of such a condition or restriction: see s 25(5)(a). The Council was obliged to comply with the Board’s direction: see s 25(8).

63    Division 1A of the EMPC Act (ss 27A-27K) prescribes various classes of assessment and the manner in which each class of assessment is to proceed. The relevant class for present purposes was 2C: see s 27A(1), (2) and Schedule 5.

64    The principles are set out in s 74 of the EMPC Act. They required that Venture Minerals, as proponent of the project, prepare a “case” to facilitate the assessment: see s 74(3). The Board, as assessing authority, was empowered to stipulate the requirements for the presentation of such a case. It required that Venture Minerals prepare a Development Proposal and Environmental Management Plan (“DPEMP” or “Plan”).

65    By s 74(4) of the EMPC Act the Board was under a duty to provide Venture Minerals with guidance on a number of matters. They were:

“(a)    the potential environmental impacts arising from the proposed activity; and

(b)    the issues arising from the proposed activities which might give rise to public concern; and

(c)    the level of assessment required; and

(d)    the timing of each stage of the assessment.”

66    Pursuant to this requirement the Board had prepared a document entitled “Guidelines for the preparation of a Development Proposal and Environmental Management Plan” to assist Venture Minerals in preparing a plan for its proposed Riley Creek mine. The guidelines were promulgated in October 2012. They drew attention to the Commonwealth’s interest in the assessment and the need for approval to be given under the EPBC Act. It referred to the fact that the proposal had been determined by the Commonwealth Minister to be a controlled action under the EPBC Act because it was likely to have a significant impact on listed threatened species and communities and listed migratory species. Attention was directed to the provisions of ss 18, 18A, 20 and 20A of the EPBC Act. The guidelines referred to the bilateral agreement and advised that the proposal would be assessed in accordance with that agreement. It continued:

“The DPEMP must therefore specifically describe the impacts of the proposal on the relevant EPBC Act controlling provisions … including a separate chapter that exclusively and fully addresses the matter specified in Schedule 4 of the Commonwealth Environment Protection and Biodiversity Conservation Regulations 2000 as attached (see s 5 EPBC Act requirements).”

The guidelines then set out a series of topics which Venture Minerals should deal with in its DPEMP. One of these was headed “Cumulative and Interactive Effects”. Under this head Venture Minerals was advised that:

“Where relevant, this section should contain an assessment of the potential cumulative effects of the proposal, based on existing and other formally proposed developments in the region, which have not been addressed in previous sections. Interactions between biophysical, socio-economic and cultural effects of the proposal should be discussed.”

Towards the end of the guidelines there was a separate section headed “EPBC ACT REQUIREMENTS”. Under this heading there was a sub-heading entitled “Cumulative Impacts”. Under this sub-heading Venture Minerals was advised that:

“The DPEMP should consider the cumulative impacts on protected matters, of the proposal with other current or planned developments in the vicinity of the site (particularly the Livingstone DSO Hematite Project … and the Mt Lindsay Tin-Tungsten-Magnetite-Copper Mine …). Such impacts may include the potential increase of traffic between mine sites that will have a likely impact on Tasmanian Devils, Spotted-tailed Quolls and Wedge-tailed Eagles.”

67    In accordance with these guidelines Venture Minerals prepared a DPEMP for the proposed mine. As suggested in the guidelines, the plan contained a series of references to the cumulative impact of the proposal.

68    Volume 1 of the Plan contained 206 pages. A substantial section (pages 149-171) was devoted to the cumulative and interactive effects of the proposed mine. At the beginning of this section Venture Minerals provided a summary of other activities, current and proposed, in the area of the Riley Creek mine. They included the Rosebery, Renison Bell and Mt Bischoff mines and some Forestry Tasmania coups. Some of these other projects were over 10 kilometres away from the Riley Creek mine site. There followed sections which covered the cumulative impact of developments in the area on air emissions, water drainage, sediment loss, noise, traffic, flora and fauna (including the effect on Tasmanian devils) and on roadkill.

69    In March 2013 Venture Minerals provided supplementary information as part of its DPEMP. The purpose and scope of this document were identified in paragraphs 1 and 2 as follows:

“1.    Purpose

This Development Proposal and Environmental Management Plan (DPEMP) supplement has been prepared in response to a letter of request from the A/Director of the Environment Protection Authority (EPA) dated 1 February 2013.

The information in this document supplements Venture Minerals’ DPEMP for its proposed Riley direct shipping ore (DSO) hematite mine off the Pieman Road, in northwest Tasmania.

The EPA and the Commonwealth Department of Sustainability, Environment, Water, Population and Communities (DSEWPAC) will consider this supplementary information, together with the original DPEMP, during their assessment of the project under the Environmental Management and Pollution Control Act 1994 and the Environment Protection and Biodiversity Conservation Act 1999 prior to approval determinations being made by the EPA Board, West Coast Council and Commonwealth Environment Minister.

Version A of this Supplement was dated 15 February 2013. This Revision B has been prepared following comments on Version A from the EPA and from DSEWPAC.

2.    Scope

The supplementary information relates to submissions from the public that were made during the DPEMP’s public advertising period and also to agency and Council comments provided to the EPA through the EPA’s referral process and also to requests from the EPA itself. At the time Version A was prepared, no requests for supplementary information had been received from DSEWPAC.

EPA comments on Version A were provided to Venture Minerals on 1 and 7 March 2013.

DSEWPAC comments on the DPEMP were provided to Venture Minerals through the EPA on 6 March 2013. This Revision B includes responses to those comments.”

The document contained a detailed table in which Venture Minerals identified issues raised in public submissions and provided its response. Some of the comments to which a response was given came from Tarkine National. There were a number of references, in public submissions, which related to the cumulative impact of the proposed development and other activities (current and proposed) in the area. These dealt with concerns relating to the effects on the Tasmanian devil, habitat modification on native species and the effect on other threatened species including the spotted-tailed quoll and wedge-tailed eagles. It is not necessary to record all of these comments and Venture Minerals’ response to them. An example will suffice. One public comment related to the impact of habitat modification on Tasmanian devils. The comments and Venture Minerals’ response to them were:

70    Having received the plan prepared by Venture Minerals and the supplementary information the Board proceeded to make its assessment under s 25 of the EMPC Act. On completion of its assessment the Board published an environmental assessment report. In preparing its report the Board acted on the assumption that it was neither required nor permitted, in making its assessment, to have regard to prospective developments in the area of the proposed mine.

71    The Board was, nonetheless, conscious that the cumulative impact of prospective developments was a matter which the Minister would, in due course, be required to consider under the EPBC Act. Accordingly, the Board included the following passages in its report:

“Description – Additional Information requested by DSEWPaC

The following information is provided for the purpose of determination under the EPBC Act. The Board cannot and has not taken the information in this section into account in its decision making.

Cumulative Impacts

The Board notes that it can only consider potential impacts from existing sources in relation to any environmental aspect.

The total cumulative land clearance associated with 3 proposed [V]enture [M]inerals mines, 2 potential forestry operations and the Bastyan rail siding is estimated in section 4.22.5 of the DPEMP as 489 ha. This is reported as less than 0.61% of the combined area of reserves in the region and less than 0.15% of the Pieman catchment.

The cumulative effect of land clearance on the devil and spotted-tailed quoll is temporary loss of foraging habitat. This would be lower than 489 ha due to the staging of operations and progressive rehabilitation. It is estimated that less than 5 devils may be temporarily displaced by the combination of the proposals.

It is concluded in the DPEMP that the proposals, either individually or combined, would not cause changes to the environment that would increase the rate of spread of DFTD.

The total number of dusk to dawn vehicle movements from all proposals is estimated at 107 vehicles during a 12 hour period. On the basis of previous studies, as listed in section 4.22.6 of the DPEMP it is concluded that the proposed roadkill mitigation measures, when implemented for all Venture Mineral’s proposals, are likely to be very effective at mitigating the total potential roadkill impact.”

72    Tarkine National was dissatisfied with the Board’s assessment and appealed to the Tribunal.

73    One of the grounds of Tarkine National’s appeal to the Tribunal from the Board’s assessment was that the Board had failed to give consideration to the cumulative impact of the proposed mine and two other proposed mines. The Tribunal rejected this ground finding “that there was no legal obligation upon the Board to consider the cumulative impact of proposed mines … in its assessment of the mine at Riley Creek”: see Tarkine National Coalition Inc. v West Coast Council and Venture Minerals Limited [2013] TASRMPAT 103 at [101]. Earlier in its reasons the Tribunal had noted (at [92]-[93]) that:

“92.    In fact there is no overt mention of cumulative impacts or cumulative impact assessment in Part 3 or elsewhere in the EMPC Act. Such concern, where identified as relevant, arises under Section 25(2) of that Act – as well as other issues. That is, the Board may include cumulative impact as an item to be assessed under Section 74(4), something that was actually done by virtue of Clause 4.1.9 of DPEMP Guidelines issued in respect of this application, as noted in Dr Wood’s evidence. Section 4.2.2 of the DPEMP contains an evaluation of the cumulative impacts of the Riley mine and the proposed Livingstone and Mount Lindsay mines, the Forestry Tasmania harvesting plans, the Rosebery mine, the Renison Bell, and the Mount Bischoff mine operations. The cumulative effects examined in section 4.2.2. of the DPEMP includes air emissions, acid drainage, liquid waste and sediment loss, noise, traffic, flora and fauna and road kill. Some additional cumulative impact information was requested by the Board and supplied in a DPEMP supplement.

93.    The Board’s report noted that assessment but concluded that “It cannot and has not taken” the cumulative impacts into account in its decision making (see Section 6.3). …”

74    As can be seen the Tribunal agreed with the Board that the Board was not required by s 25 of the EMPC Act to have regard to the cumulative impact of other existing or proposed developments, but considered that the Board was not precluded from doing so.

75    The Board’s report was provided to the Minister and was considered by him in making his decision. In his reasons the Minister referred to what the Board had said in the passage quoted above at [71]. He said that:

“I was advised by the department that under the EMPC Act, the EPA can only assess and condition on the onsite impacts of the proposed action. Offsite impacts resulting from the development of the rail loading facility, transportation of product, changes in water quality in downstream habitats all fall outside the EPA process. In addition, the EPA can only consider impacts of existing sources and is therefore unable to consider the cumulative impacts of the proposed Venture projects in this area. Nevertheless, the EPA assessment report provided a summary of the information contained in the [Development Proposal and Environmental Management Plan] on these issues.”

76    As already noted the Minister rejected advice to await the Tribunal’s decision prior to making his own decision. As a result the Tribunal’s reasons for decision were not before him.

77    It is against this background that I turn to the various arguments advanced by Tarkine National.

No Valid Bilateral Agreement

78    Section 47(2) of the EPBC Act provides that the Minister may only enter in a bilateral agreement if “satisfied that assessment of an action in the specified manner will include assessment of the impacts the action” has or will have or is likely to have “on each matter protected by a provision of Part 3.” Tarkine National argued that the Minister could not have been so satisfied either because the EMPC Act did not provide for assessment of cumulative impacts as required by the EPBC Act or because the Minister had failed to consider whether the assessment process specified in Part B of Schedule 1 of the Agreement would include an assessment of the kind required by the EPBC Act.

79    The copy of the bilateral agreement which was in evidence is undated. There was, however, evidence that it had been entered into on 3 May 2011 after the Commonwealth Minister had declared himself satisfied as to its efficacy for the purposes of s 47(2) of the EPBC Act. There was no dispute that it was in force at relevant times (assuming, contrary to Tarkine National’s arguments, that it was a valid agreement for the purposes of the EPBC Act). By Clause 9.1 it provided that “an action in a class of actions, need not be assessed under Part 8 … if the action has been assessed in the manner described in Schedule 1”. Part B of Schedule 1 provided for an action to be assessed, inter alia, pursuant to s 25 of the EMPC Act. The Board avowedly carried out its assessment of Venture Minerals’ mine development proposal pursuant to this section.

80    Tarkine National, in its written submissions, disputed that any assessment made under s 25 of the EMPC Act could, as a matter of law, satisfy the requirements of s 47(2) of the EPBC Act, because s 25, in the view of the Board, precluded it from examining the cumulative impacts of the proposal.

81    The argument was put somewhat differently in oral submissions when it was argued that Venture Minerals’ proposal had not been assessed by the Board in the manner specified in the bilateral agreement because the assessment was not carried out under s 25 of the EMPC Act. This failure, it was said, was contrary to the requirements of clause 1 of Part B of Schedule 1 to the bilateral agreement.

82    It should immediately be observed that this argument assumes that the Board was correct to construe s 25 as precluding assessment of the cumulative impact of prospective projects and that the Tribunal’s subsequent decision that it was open to the Board to have regard to such matters was wrong.

83    The term “cumulative impacts” does not appear in the EMPC Act (or, for that matter, in the EPBC Act). Section 25(2) of the EMPC Act requires the Board, if it is minded to assess an activity, to undertake the assessment in accordance with certain prescribed principles. Neither the sub-section nor the principles required that the Board have regard to or refrain from having regard to the cumulative impact of the activity on the environment. The legislation is simply silent on the point.

84    When making his decision under s 47(2) of the EPBC Act in May 2011 the Minister was not, therefore, bound to proceed on the basis that s 25 of the EMPC Act precluded the Board from considering the impact of other projects in conjunction with the project which was subject to assessment. At the time at which the Minister made his decision under s 47(2) the Board had not published its assessment of the Riley Creek mine. Even had the Minister been aware of the Board’s construction of s 25 of the EMPC Act he would not have been bound to accept it.

85    The argument advanced by Tarkine National also assumes that the EPBC Act requires the Minister, in all cases, to have regard to the “cumulative impact” of a proposed development. What the Minister is required, by Part 8 of the EPBC Act, to do is to have regard to the “relevant impacts” of proposed action on environmental interests protected by Part 3 of that Act. In 2007 s 527E was added to the EPBC Act to define what was comprehended by the word “impact”. The Explanatory Memorandum to the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 (Cth) explained that:

“This item inserts new section 527E into the Act. This section inserts a definition of ‘impact’. The purpose of the amendment is to clarify the extent to which impacts which are indirect consequences of actions must be considered or dealt with under the Act. Section 527E applies to all direct and indirect consequences of the taking of an action by a person, which meet the criteria of that section. Subsection 527E(2) only applies in relation to impacts of actions by third parties which are an indirect consequence of the taking of an action by the first person.”

86    Part 8 of the EPBC Act does not, in terms, impose on the Minister an obligation to take into account all “cumulative” impacts of a proposed action. The Minister is required to direct his attention to the direct or indirect consequences of the action. In order for an event or circumstance to be an indirect consequence of the action, it must be demonstrated that “the action is a substantial cause of that event or circumstance” (see s 527E(1)(b)) and that the criteria prescribed by s 527E(2) are met. There is, therefore, no general requirement imposed on the Minister to take into account all impacts of an action. It may be, however, that, in a particular case, an indirect consequence of an action will include the cumulative impact of a secondary action as defined. In such a case the Minister must have regard to such an impact.

87    It follows that there is no substance in the argument that it was not open to the Minister, under s 47(2) of the EPBC Act, to be satisfied that an assessment, conducted under s 25 of the EMPC Act, would include an assessment of the impacts of the proposed action on matters protected by Part 3 of the EPBC Act.

Failure of the Board to Assess Proposal in Accordance with Bilateral Agreement

88    One of Tarkine National’s alternative arguments was that Venture Minerals’ proposed mining development was not assessed in the manner prescribed by the bilateral agreement. This was because any assessment of cumulative impacts which had been undertaken by the Board had not occurred under s 25 of the EMPC Act and because certain of the requirements of item 6.3 of Part B of Schedule 1 had not been satisfied.

89    Tarkine National’s complaint, in so far as it relates to s 25 of the EMPC Act, fails at a number of levels. The first is that it is founded on the premise that the Board was required to assess the cumulative impact of the Riley Creek mine and a range of other projects in the Tarkine area when making an assessment under s 25 of the EMPC Act. For reasons already given, no such obligation was imposed on the Board.

90    In any event there is an air of unreality about the submission that the Board failed to conduct its assessment, to the extent that it involved consideration of cumulative impacts, under s 25 of the EMPC Act. There can be no doubt that the Board conducted the assessment process under s 25. As part of the assessment process it promulgated guidelines which required Venture Minerals to provide information and submissions relating to the cumulative impact of the mine development and other adjacent projects on aspects of environmental concern. Venture Minerals responded by providing extensive information and comment.

91    It is true that, when the Board came to prepare its report, it took the view, mistakenly in my opinion, that it was not able to have regard to such considerations for the purpose of making its assessment for the purposes of the EMPC Act. As a result it did not do so. Nonetheless, it undertook an assessment of the cumulative impact of the Riley Creek mine and two other proposed and adjacent mines. It did so because, as had been anticipated in the guidelines, this was information which the Board knew the Minister would need to take into account when he made his decision under the EPBC Act.

92    In NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277 at 288 Gleeson CJ dealt with competing contentions as to what considerations a statutory body was required to take into account in making a particular decision. The question, his Honour said (at 288), was “what, if anything, the Act requires, or permits, or forbids [the authority] to take into account in giving effect to its role in the system.” On its proper construction s 25 of the EMPC Act neither required nor forbad the Board from having regard to cumulative impacts of the proposed mines on matters of environmental concern. The Board was, therefore, permitted, had it wished to do so for the purposes of its assessment, to have regard to these matters. Although it chose not to do so it, nevertheless, included in its assessment report an analysis of the combined impact of three proposed mines including that at Riley Creek. It did so to assist the Minister in making his decision under Part 9 of the EPBC Act. It could also have done so for the purposes of reaching its decision under the EMPC Act. The fact that it did not does not mean that assessment was not carried out under s 25. It was. The resultant report was provided to the Minister in accordance with the provisions of the bilateral agreement. The Board’s mistaken view as to the extent of its powers under s 25 could have no bearing on the efficacy of the Minister’s decision to approve the development.

93    In order to understand Tarkine National’s submissions relating to Item 6.3 of Part B of Schedule 1 it is necessary to refer first to some of the earlier provisions of the bilateral agreement. By Clause 14.1(b) of the agreement the State of Tasmania undertook that, when an action was being assessed under the EMPC Act, it would provide a copy of the assessment report to the Commonwealth Minister not more than 10 days after the Board had accepted the report. The State also undertook to provide the Minister with “copies of any other assessment documentation” no later than 10 days after the assessment report had been provided. An “Assessment Report” is defined, in Clause 38, to mean, relevantly, the Report prepared by the Board in accordance with Item 6 in Part B of Schedule 1. The definition of Assessment Report in Part 9 of the EPBC Act is broader than the definition in the bilateral agreement. Section 130(2)(a) relevantly defines such a report as one “given to the Minister as described in … subsection 47(4) …”. As already noted s 47(4) refers to a “report including, or accompanied by, enough information about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve … the action.”

94    The term “[a]ssessment documentation” is broadly defined, in Clause 37, to mean “any formal report, study, agreement, submission or correspondence prepared by or received by the Board as part of the formal assessment processes set out in Schedule 1.”

95    Item 6 in Part B of Schedule 1 deals with assessment reports. It provides that:

“6.1    The Board prepares an Assessment Report (or a document that includes an Assessment Report) and submits the Report to the Commonwealth Environment Minister.”

96    Item 6.2 stipulates that the report is to take into account public submissions, the DPEMP and “any other relevant information available to the Board.” Item 6.3 then provides that:

“6.3    The Assessment Report contains enough information about the relevant impacts of the proposed action to enable the Commonwealth Environment Minister to make an informed decision whether or not to approve the taking of the action under the EPBC Act, including:

(a)    a description of:

    (i)    the action; and

    (ii)    the places affected by the action; and

(iii)    any matters of national environmental significance that are likely to be affected by the action; and

(b)    a summary of the relevant impacts of the proposed action; and

(c)    a description of feasible mitigation measures, changes to the action or procedures to prevent or minimise environmental impacts on relevant matters of national environmental significance proposed by the proponent or suggested in public submissions; and

(d)    to the extent practicable, a description of any feasible alternatives to the action that have been identified through the assessment process, and their likely impact on matters of national environmental significance; and

(e)    a statement of conditions for approval of the action that may be imposed to address identified impacts on matters of national environmental significance; and

(f)    a statement of State approval requirements and conditions that apply, or are proposed to apply, to the action when the report is prepared, including a description of the monitoring, enforcement and review procedures that apply, or are proposed to apply, to the action.”

97    Tarkine National contended that the Board’s report did not contain enough information about the relevant impacts of the proposed development (including cumulative impacts) to enable the Minister to make an informed decision. Specifically, it alleged that the Board’s report failed to contain sufficient detail relating to the matters identified in sub-paragraphs (b), (c), (d) and (e).

98    Tarkine National did not submit that the Board’s report did not deal with the matters identified in sub-paragraphs (b), (c), (d) and (e) of item 6.3. This is unsurprising given that the report contained passages (some of them extensive) which related to these matters. What it did challenge was the sufficiency of the information provided in the report. Nor did Tarkine National submit that the Minister did not have adequate information relating to these matters before him at the time he made his decision. Again, this is unsurprising given that, in addition to the assessment report, the Minister had available to him and considered a large volume of material including departmental advice, the DPEMP (including the supplementary information provided in March 2013) and a range of surveys relating to threatened fauna in the area.

99    Even if the report was deficient in one or more of the ways alleged, it does not necessarily follow that the Minister’s decision was thereby rendered errant. The EPBC Act provided a number of processes whereby the Minister was able to obtain additional information which informed his decision making.

100    A similar point was taken in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. The appellant in that case argued that the Minister did not have an “assessment report” before him as required by s 133 of the EPBC Act because, on an objective assessment, there was not “enough” information in the document that purported to be the assessment report. Tamberlin J (with whom Moore and Lander JJ agreed on this point) rejected the contention. His Honour said (at 64-65) that:

“267    The information on which the Minister is required to make the decision is nowhere expressly limited to that in an assessment report which has undergone the public process. Other information, for example, which is not subject to the assessment report process, can be taken into account under ss 131 and 136. It is to be noted that the Minister under s 136 must take into account comments from other Ministers under s 131. Section 136 further contemplates that a Minister may obtain and take into account additional information beyond that contained in the assessment report as to the decision proposed. This supports a conclusion that a decision to approve or not approve can be based on further information not in the assessment report and which has not been the subject of assessment procedure or public participation. In particular, s 136(2) reinforces the view that there can be a decision which takes into account material not contained in the assessment report: see s 136(2)(a), (c), (d) and (e) of the EPBC Act. …

268.    Furthermore, the language used in the above provisions does not in terms or impliedly require that an assessment report cannot be supplemented by further information as under s 131 or s 132. Nor is there any provision which prevents the Minister seeking such further information as considered necessary. There is no apparent reason why the Minister should be prohibited from obtaining such further information as he considers appropriate to perform his statutory duty of deciding whether to approve. The Minister is the person best placed to know whether he has ‘enough information’ to make an informed decision. It is fitting, given the wide range of the Minister’s powers and discretions, to adopt a liberal and expansive view as to the range of information the Minister can consider necessary or appropriate. In the present case he obviously formed the view that he initially did not have enough information, and then proceeded to obtain it before making his further informed decision.”

His Honour continued (at 66):

“273    As counsel for the respondents points out, s 47(4) of the EPBC Act, which describes an ‘assessment report’, provides for the Minister to receive a report which includes or is accompanied by enough information as to the impacts to let the Minister make a decision. This supports the view that it is possible to have an assessment report supplemented by other material which is not part of the ‘body’ of the report. The provisions contemplate a report which may not initially have all the relevant information but which at the time of the decision is accompanied by enough further information for the Minister to make the decision on the report and the material which accompanies it at the time of the decision. …” (Emphasis in original).

101    It was for the Minister to evaluate the Board’s assessment report and to determine whether or not it provided him with sufficient information about the relevant impacts of Venture Minerals’ proposed development to enable him to make an informed decision on whether or not to approve the development. He did not, in his reasons, expressly state that he considered that the Board’s report contained enough information about relevant impacts to enable him to make an informed decision. It may, however, be inferred from the fact that he felt able to proceed to a decision that he considered that he had adequate material before him, if not exclusively from the report, from a combination of the report and the supplementary material which was provided to him. Even if it be assumed, in Tarkine National’s favour, that the Minister may have taken the view that he required information, in addition to that provided in the Board’s report, in order to make a decision, it does not follow that his decision to approve the project can be impugned for that reason. The requirement in paragraph 6.3 of Part B of the Schedule 1 of the bilateral agreement that any assessment report prepared under Tasmanian legislation contain enough information about the relevant impacts of a proposal as to enable the Minister to make an informed decision, must be understood as being aspirational rather than prescriptive. During the currency of the agreement it might reasonably be expected that multiple projects might be referred to the Minister for approval and that different persons might hold the office of Minister. Different Ministers might well take different views about what impacts were “relevant” for the purposes of their decision making under Part 9 of the EPBC Act. One Minister might consider that the report contained sufficient information for him or her to make a decision; another might not. In the event of any perceived deficiency s 47(4) of the EPBC Act contemplates that the bilateral agreement will ensure that the Minister will be provided with additional material such as a DPEMP in order to rectify that deficiency. The agreement complied with s 47(4) by requiring the State of Tasmania to provide the Minister, not just with an assessment report, but also with assessment documentation. Such additional material was supplied to the Minister and was considered by him for the purpose of making his decision. What has not been established is that he had regard to this additional material because he considered that the assessment report had not provided him with all the information which he needed in order to make an informed decision.

102    Even if it be assumed that the effect of Item 6.3 was to require that there be sufficient information in the assessment report, standing alone, to enable the Minister to make an informed decision and that that requirement had not been satisfied in the present case, this would not, necessarily, lead to the conclusion that the Minister’s decision to approve the proposal was affected by reviewable error.

103    In Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4 the New South Wales Court of Appeal discussed the correct approach to determining the consequences which should flow from a failure to comply with a statutory duty. It said that:

“(1)    The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2)    The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance. …(3)    The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … (4)    The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement …”

Such an approach has been endorsed in this Court: see Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 36 FCR 478 at 494; Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 278. Generally speaking public duties have been treated as being directory in nature and, if not complied with, as not giving rise to invalidity. Another factor which is influential in ascertaining the legislative intention is the weighing of the consequences of holding the ultimate decision to be invalid: see SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 237-8.

104    There is no reason, in principle, why a similar approach should not be applied to the construction of a bilateral agreement entered into by the Minister pursuant to ss 45 and 47 of the EPBC Act. The consequences of there being any material deficiencies in the contents of an assessment report are to be assessed having regard to the bilateral agreement as a whole and the legislative purpose which it serves. The objects of the EPBC Act include protection of the environment, the promotion of ecologically sustainable development and the promotion of the conservation of biodiversity. In order to protect the environment, matters of national environmental significance are identified and actions which might prejudice the achievements of these objectives may only proceed with ministerial approval. As assessment of the proposed action is required in order that the Minister might be put in a position to make an informed decision. That assessment will normally be made under Part 8 of the EPBC Act. An alternative course, which was adopted in the present case, is that the assessment be made under State legislation pursuant to a bilateral agreement. The bilateral agreement required the State of Tasmania to provide the Minister not only with an assessment report but also with “assessment documentation” which had been prepared or received by the Board in the course of its assessment process under the EMPC Act.

105    Item 6.3 is concerned only with the Board’s assessment report. Although it does not use mandatory language it does contemplate that any assessment report prepared by the Board will contain “enough information about the relevant impacts of the proposed action” to enable the Minister to “make an informed decision…”. The critical question is what is the consequence if a report comprehended by Item 6.3 fails to contain “enough” information to facilitate the making of an informed decision. I do not consider that it was the intention of the ministerial parties to the agreement that any such deficiency would give rise to the invalidity of any decision of the Commonwealth Minister under Part 9 of the EPBC Act which was based in part on the deficient report. The legislative objective is to have in place a regime under which the Minister has what he or she considers to be sufficient information to make an informed decision at the time at which the decision is made. The provision of an assessment report is an important element of the scheme. Such a report is not, however, to be the exclusive source of information for the Minister. Section 47(4) of the EPBC Act and the terms of the bilateral agreement combine to ensure that the Minister also has before him or her a considerable amount of documentary material which was received and considered in the course of the assessment process. Furthermore, as was held in Lansen, it is open to the Minister, in the course of his or her deliberative processes to seek and obtain additional information. In this way any perceived deficiencies in the information contained in the assessment report can be remedied. Given the availability of alternative sources of information to which the Minister has access in order to be sufficiently informed I am unable to discern any intention that any such deficiency should cause any decision, made by the Minister under Part 9, to be invalid. This is particularly so given that the Minister is not responsible for any deficiency in the assessment report prepared pursuant to the bilateral agreement and that the objects of the Act are served if the Minister’s decision is (as it was in the present case) able to be informed by material which formed part of the assessment documentation. I am not prepared to attribute to the authors of the bilateral agreement an intention that, merely because the Minister found it necessary (if he did) to draw on sources other than the assessment report in order to make an informed decision under Part 9, that rendered the approval decision invalid. Unnecessary cost (both in terms of money and time) would be caused to the Minister and the project proponent were the Minister to be required to reconsider the decision after the Board had remedied the deficiency in the assessment report by incorporating in it the assessment documentation which the Minister had already read and taken into account.

The Cumulative Impact of “All Relevant Projects or Actions”

106    Tarkine National identified a number of existing mines in the Tarkine area and a number of proposed projects, some of which involved expansion of existing facilities. In all, some 11 projects were mentioned in its written submissions. It complained that the Minister had failed to consider the cumulative effects of these projects in conjunction with Venture Minerals’ proposed mine. It alleged that the Minister was, or ought to have been, aware of each of these projects. Despite this he had failed to assess their cumulative impact. This omission had given rise to jurisdictional error either because he had misunderstood what was said to be his obligation to consider cumulative impacts or because he had failed to take account of a mandatory relevant consideration identified as “being the existence of, and the cumulative impacts of [the Venture Minerals proposal] with each of the projects” which it had identified.

107    As has already been noted the Minister, at the time at which he made his decision, had before him a good deal of material relating to the cumulative impact of the proposed Riley Creek mine and some other projects on endangered species. The guidelines prepared by the Board required Venture Minerals to provide an assessment “of the potential cumulative effects of the proposal, based on existing and other formerly proposed developments in the region” and “the cumulative impacts on protected matters, of the proposal with other current or planned developments in the vicinity of the site …”: see above at [66]. Venture Minerals dealt with these matters in its DPEMP and in the supplementary information it provided in March 2013: see above at [68] and [69].

108    The issue was also dealt with in submissions to the Minister from his department. In a submission, provided to the Minister on 2 August 2013, the department recorded that:

“In the department’s recommendation to you on the proposed decision, it was noted that any impact to the Tasmanian devil from a loss of habitat as a result of the proposed action would not be significant … In reaching this conclusion, the department considered the cumulative impact of habitat loss on the Tasmanian devil from other proposed developments in the region, however this consideration was not explicitly referred to in the department’s proposed decision brief, where findings on potential cumulative impacts focused on those resulting from road kill. The department’s recommendation in regards to cumulative impacts remains unchanged, however for clarity, the findings from the consideration of cumulative habitat loss are presented below.”

Those findings were that:

“… habitat loss is not a main threat to the Tasmanian devil except when it results in the loss of maternal dens, once devil facial tumour disease becomes established in an area. The Tasmanian devil habitat within the proposed Venture sites is generally considered sub-optimal foraging habitat. Due to this and given the overall vegetation clearance would be small in scale at the regional level, occur in stages, and be dispersed over a number of areas, the department considers that any adverse cumulative impact resulting from habitat loss from all three Venture proposals are insignificant. Moreover (and noting that future approval decisions cannot be pre-empted), cumulative impacts resulting from the loss of habitat are likely to be able to be adequately mitigated and managed.”

109    In his reasons for decision, under the heading “Cumulative Impacts” the Minister devoted some eight paragraphs to this issue. He commenced by recording that:

“61.    The DPEMP considered the cumulative impacts of the three Venture proposals planned on Pieman Road, the Riley DSO Hematite mine, the Mount Lindsay tin-tugsten-magnetite-copper mine (EPBC 2011/6178) and the Livingston DSO Hematite Mine (EPBC 2012/6342). I note that the Mt Lindsay and Livingston proposals will be dependent on market conditions and financing and therefore cannot be guaranteed to go ahead at this point in time. Nevertheless, I have considered the cumulative impact of these developments in my assessment of the Riley proposal.”

He went on to consider the cumulative impact of habitat loss and roadkill on Tasmanian devils. He concluded that the impact of habitat loss from all three of Ventures’ proposed mines would be insignificant and that proposed roadkill mitigation measures would be likely to be “very effective at mitigating the total potential roadkill impact.”

110    Tarkine National accepted that the Minister had had regard to at least some aspects of the cumulative impact of the three mining developments proposed by Venture Minerals. The gravamen of its complaint was that the Minister should have, but did not, take into account the cumulative impact of all of the projects which it had identified in conjunction with the Riley Creek proposal.

111    Tarkine National was unable to point to any express statutory requirement that the Minister should have regard to the cumulative impacts of each of the nominated projects. As already noted, there is no reference in the EPBC Act to the assessment of “cumulative impacts”.

112    Relevantly, s 136(1) of the EPBC Act required the Minister to consider:

“(a)    matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action; [and]

(b)    economic and social matters.”

In considering those matters s 136(2) required the Minister to take into account, relevantly, the principles of ecologically sustainable development, the assessment report relating to the action, any other information which the Minister had on the relevant impacts of the action and any relevant comments given to him or her, by other Ministers or members of the public.

113    Tarkine National did not contend that the Minister had failed to have regard to the matters prescribed by s 136(2). For it to succeed in this aspect of its case it must establish that the obligations, which it asserted fell on the Minister, are comprehended by s 136(1). More specifically it needs to make good the proposition that the cumulative impact of the 11 projects with the Riley Creek mine are “matters relevant to any matter protected by a… controlling provision” or are “economic and social matters”.

114    In Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 167 FCR 463 at 490, North J said that:

“Section 136(1)(a) left it to the Minister to decide what were the matters relevant to the protected matters which he should take into account. The section does not suggest that there was a defined set of specific matters to be taken into account such as might be intended if the section had referred to ‘all matters relevant’ or ‘the matters relevant’.

In his statement of reasons, the Minister discussed each of the protected matters, namely, the listed threatened species, the listed migratory species, the Ramsar wetlands of international significance, and the environmental impact on Commonwealth land in the area. In this discussion he considered matters which he had determined to be relevant to those protected matters.”

115    The Minister followed a similar course in reaching his decision in the present matter. He was not required, either expressly or by necessary implication, to have regard to the cumulative impact, actual or potential, of the projects and proposed projects nominated by Tarkine National. The Minister did address matters of the kind referred to in s 136(1). In doing so he dealt with the subject matter to which s 136(1) directed his attention. Any failure on his part to make enquiries about and take into account additional factual matters did not give rise to jurisdictional error in this statutory context.

116    Grounds 2A and 3 have not been made out.

GROUND 4

117    In Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 Marshall J rejected an argument that the Minister was not empowered to impose conditions which were substantially similar to conditions 24 and 28.

118    Tarkine National advised the Court that it did not wish to submit that his Honour’s decision in that regard was plainly wrong. It wished to do no more than make a formal submission that the decision was in error.

119    I have read Marshall J’s reasons and I do not, with respect, consider that they disclose any error.

120    This ground must be rejected.

DISPOSITION

121    Tarkine National has failed to make good any of its grounds. Its application must, therefore, be dismissed with costs.

122    My provisional view is that costs orders should be made in favour of the first and second respondents but not the State of Tasmania. If Tarkine National wishes to resist the making of such orders or if the State of Tasmania wishes to pursue an order for costs they should file and serve short written submissions (of no more than three pages) within seven days after the publication of these reasons. If such submissions are filed and served any other party which wishes to do so should have a further seven days to respond.

Associate:

Dated:    15 May 2014