Federal Court of Australia

Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is granted.

2.    The first and second respondents are to pay the applicant’s costs as agreed or assessed.

3.    In the absence of agreement as to the orders otherwise required to give effect to these reasons:

(a)    on or before 4:00pm on Tuesday, 1 June 2021, the parties are to file and serve an outline of written submissions not exceeding 3 pages in length in support of their respective proposed orders; and

(b)    final orders will be determined on the papers without a further oral hearing.

THE COURT NOTES THAT:

4.    The parties are to endeavour in the first instance to agree orders which otherwise give effect to these reasons.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This application raises a narrow issue of statutory construction, namely, what is the proper construction of the phrase “involves” or “involving” “large coal mining development” in ss 24D and 24E respectively of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) and the so-called “definition” of “large coal mining development” in s 528 of that Act.

2    The applicant, Australian Conservation Foundation Incorporated (ACF), is an incorporated association under the Associations Incorporation Act 1991 (ACT). ACF has engaged in activities for almost 50 years for the protection and conservation of the environment. These include activities specifically in relation to the proposed action the subject of these proceedings. It is not in issue that ACF has standing to bring these proceedings under s 487 of the EPBC Act.

3    The second respondent, Adani Infrastructure Pty Ltd (Adani Infrastructure), is an Australian wholly owned subsidiary within the Adani Group of companies ultimately held by Adani Enterprises Ltd, being an entity listed on the National Stock Exchange of India. Adani Infrastructure was registered in Queensland on 30 June 2015.

4    ACF seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision made by a delegate of the first respondent, the Minister for the Environment (Cth) (the Minister), on 9 December 2019 under s 75(1) of the EPBC Act. By that decision, the delegate (the Assistant Secretary of the Assessments and Governance Branch, Environment Approvals Division, Department of Agriculture, Water and the Environment (the Department)) decided that:

(1)    a proposed action by Adani Infrastructure comprising the North Galilee Water Scheme Water Infrastructure Project (NGWS Project) was a “controlled action” for the purposes of the EPBC Act; and

(2)    the “controlling provisions” in Part 3 of the EPBC Act for the action were ss 18 and 18A

(the controlled action decision).

5    At the same time, the delegate decided pursuant to s 87(1) of the EPBC Act that the approach to be used for the assessment of impacts was assessment on preliminary documentation under Part 8, Div 4 of the EPBC Act (the assessment approach decision).

6    These decisions were made by the Minister’s delegate on remittal after an earlier controlled action decision made pursuant to s 75(1) of the EPBC Act on 17 September 2018 (EPBC reference no. 2018/8191) with respect to the NGWS Project was set aside on 12 June 2019 by consent orders in earlier proceedings in this Court (proceeding no. NSD 2268 of 2018). Those consent orders were expressly made on the basis that there had been a material failure by the Minister’s delegate to consider some of the public comments received in respect of the proposed action when considering whether the proposed action was a controlled action under s 75(1) of the EPBC Act.

7    The NGWS Project will involve the construction and operation of infrastructure to harvest and store up to 12.5 gigalitres (GL) of water from the Suttor River in order to provide “a secure and reliable water supply” to the Carmichael Coal Mine and Rail Project (the Carmichael Coal Project). In this regard, it was not in issue that Adani Infrastructure is a separate but related company to Adani Mining Pty Ltd (Adani Mining) which was the proponent for the Carmichael Coal Project approved in a separate earlier decision (the Carmichael Coal Project approval). It is intended that Adani Mining will operate the coal mine. Nor was it in issue that the Carmichael Coal Project approval included approval for water to be supplied from the Belyando River flood harvesting structure put forward by Adani Mining in its proposal although the terms and conditions of that approval were not in evidence. The NGWS Project is intended to provide an alternative water source for the Carmichael Coal Project and required, as the parties agreed, a separate referral under the EPBC Act.

8    As I explain further below, a “controlled action” is an action which is prohibited by the EPBC Act save relevantly where an approval for the taking of the action by the person is in operation under Part 9 of the Act or there is a decision of the Minister in force under Div 2 of Part 7 that the statutory prohibition “is not a controlling provision for the action”. Division 1 of Part 3 of the EPBC Act contains the “controlling provisions” with respect to specified matters of national environmental significance. These include prohibitions under ss 18 and 18A on an action which is likely to have a significant impact on listed threatened species or listed threatened ecological communities, which the Minister found were engaged here. They also include prohibitions under ss 24D and 24E on an action involving coal seam gas development or large coal mining development which is likely to have a significant impact on a water resource (the so-called “water trigger” controlling provisions).

9    ACF contends that the delegate should have found that ss 24D and 24E of the EPBC Act were also controlling provisions for the NGWS Project on the basis that the project is a “large coal mining development” as defined in s 528 of the EPBC Act. Specifically, by the second further amended originating application filed on 14 October 2020, ACF contends that the delegate erred in construing the phrase “coal mining activity” in the statutory definition and the phrase “involves [or involving] large coal mining development” in ss 24D and 24E of the Act as encompassing only “an activity which forms part of the process of extracting coal from a mine”. In written submissions filed in advance of the hearing, ACF contended that those phrases encompass the “construction and operation of infrastructure that will supply an input (i.e. water) to a mining operation”. The construction advanced by ACF in its oral submissions was more nuanced in nature and accords in my view with the correct construction of the provisions, as I shortly explain.

10    The applicant also challenges the assessment approach decision. This is an essentially derivative challenge in the sense that, if the controlled action decision is set aside or declared invalid, the assessment approach decision must also be set aside or declared invalid, as the applicant seeks (ACF submissions in chief dated 8 July 2020 at [6]). As the Minister explained in his written submissions, the applicant’s challenge to the assessment approach decision “stands or falls” with the challenge to the controlled action decision (Minister’s submissions in chief dated 22 July 2020 at [3]; see also T6/10/20 at p. 41.29–40).

11    For the reasons set out below, the construction of the relevant provisions as ultimately developed by ACF should be accepted. Specifically, an action will involve a large coal mining development for the purposes of the water trigger controlling provisions if the action is so closely associated with the mining of coal as to be integral to it. That being so, the conclusion necessarily flowing from the findings made at [48] and [99] of the delegate’s controlled action decision is that the operation of infrastructure for the harvesting and supply of water from the alternative location for the proposed 60-year period described in the referral is properly characterised as involving large coal mining development for the purposes of ss 24D(1)(a) and 24E(1)(a) of the EPBC Act, subject to whether the action is likely to have a significant impact on water resources either alone or with other developments.  The latter is a matter which must be determined by the delegate, together with an assessment of whether the criteria in ss 24D(1)(b) and 24E(1)(b) are met.

12    It follows that the Minister’s delegate proceeded on an error of law in deciding that ss 24D and 24E were not controlling provisions for the proposed action. As a result, the controlled action decision must be set aside, at least to this extent, and remitted to Minister for determination according to law. As to the latter, it is important to emphasise that the Court’s function is not to consider whether ss 24D and 24E are controlling provisions for the purposes of the NGWS Project. That is a power vested in the Minister or her or his delegate. The Court’s function is solely to determine the legality of the delegate’s decision, relevantly, whether he misconstrued the statutory provisions.

13    Finally, I would emphasise that the delegate found that the Carmichael Coal Project was not dependent upon the proposed action the subject of the application for judicial review. This is because a source of water supply, being the infrastructure already approved as part of the Carmichael Coal Project, is potentially available in any event (see the delegate’s reasons for the controlled action decision (controlled action decision reasons) at [50]). As I have said, the proposed action which was the subject of the controlled action decision under challenge here was to provide an alternative source of water.

2.    EVIDENCE

14    ACF relied in support of its application on the affidavit of Christian Harris Slattery affirmed on 13 March 2020 (the Slattery affidavit). Mr Slattery is the relevant campaigner for ACF. His affidavit described the chronology of events leading to the controlled action and approval assessment decisions and the present proceedings, and was received in evidence without objection. Relevant documentation annexed to that affidavit included the reasons for controlled action and assessment approach decisions. Relevant extracts of the decision record were also in evidence (exhibit A1 (Court Book (CB), Section B, tabs 1, 2, 3 and 5)) including the referral decision brief prepared by the Department (Referral Decision Brief) and signed covering page. ACF also relied upon additional material which comprised part of the decision record, including maps of the area the subject of the proposed action and the mine (exhibit A2).

3.    THE STATUTORY SCHEME

3.1    The objects and scope of the EPBC Act

15    The objects of the EPBC Act are set out in s 3(1) and include:

(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

(ca)    to provide for the protection and conservation of heritage; …

16    As is reflected in the object in s 3(1)(a), the EPBC Act limits the environmental matters with which it is concerned. As s 3(2) explains, in order to achieve its objects, the 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 …

(d)    adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; …

(Emphasis added.)

17    Thus, aside from Commonwealth actions or actions likely to have a significant impact on Commonwealth land, approval is required under Part 9 of the EPBC Act only for proposed actions likely to have a significant impact on matters regarded by the Commonwealth as being of national environmental significance. These include, by way of illustration, nationally threatened species and ecological communities, migratory species protected under international agreements, Ramsar wetlands of international importance, and relevantly actions involving coal seam gas or large coal mining developments which are likely to have a significant impact on a water resource. Provisions in Part 4 of Ch 2 providing that environmental approvals are not required in certain cases have no application to the present case and may be put to one side.

3.2    The staged decision-making process under the EPBC Act

3.2.1    Stage 1: Referral of proposed actions to the Minister to determine whether the action is a controlled action for the purposes of the EPBC Act

18    The EPBC Act is designed to ensure that a proposal to take an action which may be a controlled action requiring approval is referred to the Minister. Thus, not only are persons prohibited under s 67A from undertaking a controlled action unless an approval is in operation. Section 68 imposes an obligation upon the person to refer proposed actions to the Minister even though the action may not be a controlled action where the person simply thinks that it might be. Furthermore, a person may refer an action to the Minister for what might be described as “the avoidance of doubt” even if the person does not think that the action is a controlled action. With respect to the last of these possibilities, Kiefel J (as her Honour then was) observed in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (Queensland Conservation Council) at [12] that, “[w]hilst a person has a choice whether to refer a proposed action in circumstances where they do not think the action is one controlled by the provisions of Part 3, they may be at risk of offending.” Section 68 is relevantly in the following terms:

(1)    A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(2)    A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(3)    In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.

(4)    If the person states that the person thinks the action is a controlled action, the person must identify in the statement each provision that the person thinks is a controlling provision …

(Emphasis added).

19    The term “action” is defined in s 523 as including:

(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).

20    As Kiefel J held, it follows that the term “action” “is defined in wide terms”: Queensland Conservation Council at [9].

21    In addition, provision is made under the EPBC Act:

(1)    for States, Territories (or State/Territory agencies) or Commonwealth agencies with administrative responsibilities relating to the action to refer proposals to the Minister for a decision on whether or not the action is a controlled action, even though they are not proposing to take an action (ss 69(1) and 71(1), EPBC Act); and

(2)    for the Minister to request a referral from a person proposing to take action or a government entity with relevant administrative responsibilities where the Minister “believes [that] a person proposes to take an action that the Minister thinks may be or is a controlled action” and, if the request has not been complied with within 20 days, to determine that the Act has effect as if a referral had been made (s 70, EPBC Act).

22    As such, there are a number of mechanisms under the EPBC Act which are intended to ensure that any proposed action which might be a controlled action, or where there is any doubt about the matter, is referred to the Minister to determine whether or not the action is a controlled action governed by the Act. Furthermore and importantly, a decision by the Minister that an action is not a controlled action for all or some of the controlling provisions enables a person to undertake the action in question without fear of contravening the controlling provisions even if the Minister is wrong in her or his assessment: see eg ss 24D(4)(c) and 24E(4)(c), EPBC Act: Queensland Conservation Council (FCA) at [37] (Kiefel J).

23    Section 74A also relevantly provides that:

(1)    If the Minister receives a referral in relation to a proposal to take an action by a person, and the Minister is satisfied the action that is the subject of the referral is a component of a larger action the person proposes to take, the Minister may decide to not accept the referral.

24    Importantly, s 74A has no application where the person proposing to take the action (relevantly, Adani Infrastructure) is not the same person as the person undertaking the larger action (Adani Mining). As such, the question of assessing the proposed action at issue in this case as part of the larger action did not arise. Nonetheless, it was initially said that s 74A was relevant to the issues of construction. Specifically, ACF submitted that, on the construction for which the respondents contend, the operation of ss 24D and 24E could be avoided simply by using a special purpose vehicle to construct and operate the infrastructure for the supply of the alternative source of water to the mine. However, Adani Infrastructure took the view that the water trigger controlling provisions would not apply in cases such as the present irrespective of the identity of the proponent and the Minister did not appear to argue against that view.

25    Once a referral is made, the EPBC Act provides for an efficient and timely assessment and approval process in line with the object in s 3(2)(d), which is intended to ensure that activities likely to have significant impacts on matters of national environmental significance are properly assessed. This process is comprised (relevantly) of a number of different stages as explained below.

3.2.2    Stage 2: the controlled action and assessment approach decisions under the Act

26    Once a referral has been made, there are a number of decisions required to be made under the Act (in a process described as one of “studied haste” by Branson and Finn JJ in Wilderness Society v Turnbull (2007) 166 FCR 154 at [84]) before a final decision can be made on whether or not to approve the proposed action. These are directed towards ensuring that the Minister makes informed decisions on the issues raised by a proposed action and that, among others, members of the public have an opportunity to comment at appropriate stages of the process.

27    First, as soon as is practicable after receiving a referral relevantly under s 71, the Minister must:

(1)    inform the person proposing to take the action of the referral and invite the person to give the Minister relevant information about whether the action is a controlled action within 10 business days (s 73, EPBC Act);

(2)    inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the proposal and invite them to give within 10 business days information relating to the proposed action and relevant to deciding whether or not it is a controlled action (s 74(1), EPBC Act);

(3)    inform the appropriate State or Territory Minister where the (Commonwealth) Minister thinks the action may have an impact on matters protected by a provision of Division 1 of Part 3 about matters of national environmental significance and invite the Minister within 10 business days to comment on whether the proposed action is a controlled action and the appropriate assessment approach (s 74(2), EPBC Act); and

(4)    publish the referral on the Internet, together with an invitation “for anyone” to comment within 10 business days on whether the action is a controlled action (s 74(3), EPBC Act; see also s 170A).

28    The information which must be included in a referral is specified in s 72 of the EPBC Act and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).

29    Secondly, within 20 business days of receiving the referral, the Minister must decide under s 75(1) whether the action is a controlled action and which provisions of Part 3 of the EPBC Act are controlling provisions for the action. In so deciding, the Minister must, among other things, consider the comments, if any, received in response to the invitation under s 74(3) within the period specified in the invitation, and all likely adverse, but not beneficial, impacts which the action is likely to have on the matter protected by each provision of Part 3 (s 75(1A) and (2)). In this regard, further information may be sought by the Minister if she or he believes on reasonable grounds that the referral does not include sufficient information to make the controlled action decision (s 76, EPBC Act).

30    In addition, under s 391, the Minister must take account of the “precautionary principle in making a decision” relevantly about whether an action is a controlled action “to the extent that he or she can do so consistently with the other provisions of this Act”. The “precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage” (s 391(2), EPBC Act, and item 1 of the table in s 391(3)).

31    Thirdly, at the same time that the Minister makes the controlled action decision (s 88(1)), the Minister must decide under s 87(1) which of six possible assessment approaches provided for in Part 8 must be used for assessment of the relevant impacts of an action which the Minister has decided is a controlled action. These include assessment on preliminary documentation under Division 4, as determined by the Minister in the assessment approach decision in this case. However, the Minister may decide on an assessment on preliminary documentation only if satisfied after considering the information in the referral, any other information available to the Minister about relevant impacts that the Minister considers relevant, and any relevant information received from a State or Territory Minister under s 74(2)(b)(ii), that this approach will allow her or him to make an informed approval decision (s 87(5), EPBC Act).

3.2.3    Stage 3: assessment of the impacts of the proposed action

32    The third stage in the decision-making process is to assess the impacts of the action on the matters protected by the controlling provisions for the action. Thus, subject to exceptions not presently applicable, if the Minister decides that the action is a controlled action the “relevant impacts” of the action are to be assessed by the method of assessment in Part 8 determined by the Minister in order to decide whether the action should be approved and if so, on what conditions. Section 82(1) relevantly provides that the “relevant impacts” of the action are:

… the impacts that the action:

(a)    has or will have; or

(b)    is likely to have;

on the matter protected by each provision of Part 3 that the Minister has decided under that Division is a controlling provision for the action.

33    Furthermore, the impacts of an action include the direct and indirect consequences of the action as defined in s 527E of the EPBC Act.

34    The phrase “significant impact” is not defined in the EPBC Act. However, it has been held to mean an “impact that is important, notable or of consequence having regard to its context or intensity”: VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [62] (the Court) approving Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39 at [99]–[100] and Polaris Coomera Pty ltd v Minister for the Environment [2021] FCA 254 at [36].

3.2.4    Stage 4: whether the proposed action should be approved

35    The final step in the decision-making process is the decision of whether to approve under s 133 of the EPBC Act the taking of the action for the purposes of the controlling provisions and, if so, what conditions (if any) to attach under s 134 to any approval. In making that decision, the Minister must by virtue of s 136(1) consider 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 “economic and social matters”. In turn, in considering those matters, s 136(2) requires the Minister to take into account, among other things:

(1)    the principles of “ecologically sustainable development”;

(2)    the assessment report (if any);

(3)    any relevant advice obtained by the Minister from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (the Expert Committee) (a specialist body established by s 505C) in accordance with s 131AB (see also the functions of the Expert Committee in s 505D); and

(4)    any relevant comments given to the Minister in accordance with an invitation under ss 131 or 131A.

36    The principles of ecologically sustainable development are set out in s 3A as follows:

(a)    decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b)    if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)    the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d)    the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e)    improved valuation, pricing and incentive mechanisms should be promoted.

37    Sections 137 to 140 set out further matters to which the Minister must have regard depending upon which controlling provisions in Part 3 apply.

38    Furthermore, there is an obligation upon the Minister to obtain advice from the Expert Committee under s 131AB before deciding whether or not to approve the action in the circumstances spelt out in s 131AB(1), namely, if:

(a)    the taking of an action, for the purposes of a controlling provision, involves:

(i)    coal seam gas development; or

(ii)    large coal mining development; and

(b)    the Minister believes that the taking of the action:

(i)    is likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity; and

(ii)    may have an adverse impact on a matter protected by a provision of Part 3.

39    Significantly, when appointing members of the Expert Committee, the Minister is required to ensure the independence of each member and that each member (other than the Chair) possesses appropriate scientific qualifications or expertise (s 505C(5), EPBC Act). Furthermore, s 505C(6) provides that the Minister must ensure that a majority of the members possess scientific qualifications and expertise in one or more of the following areas: geology, hydrology, hydrogeology and ecology. The Expert Committee is to consist of at least 5, but not more than 8, members (s 505C(2)). With respect to the importance of the independence of the members of the Expert Committee, the Hon Tony Burke, then Minister for Sustainability, Environment, Water, Population and Communities, explained in the Second Reading Speech for the Environment Protection and Biodiversity Conservation Amendment Bill 2013 (HR) (the 2013 Second Reading Speech), that:

The independence of the expert committee provides the community with the confidence they need that the scientific work being done has the integrity that people want.

3.3    Sections 24D and 24E, EPBC Act, and their associated “definitions” in s 528

40    Sections 24D and 24E appear in Subdivision FB entitled “Protection of water resources from coal seam gas development and large coal mining development” of Division 1 headed “Requirements relating to matters of national environmental significance” of Part 3. Part 3 in turn is headed “Requirements for environmental approvals”. As earlier mentioned, ss 24D and 24E are commonly described as the “water trigger” controlling provisions.

41    Section 24D is a civil penalty provision and relevantly provides that:

(1) A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action if:

(a)    the action involves:

(i)    coal seam gas development; or

(ii)    large coal mining development; and

(b)    the action:

(i)    has or will have a significant impact on a water resource; or

(ii)    is likely to have a significant impact on a water resource.

Civil penalty:

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

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

(Emphasis added.)

42    It is not in issue that Adani Infrastructure is a “constitutional corporation” for the purposes of the EPBC Act.

43    Similarly, s 24E creates an offence in the following terms:

(1)    A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, commits an offence if:

(a)    the corporation or agency takes an action involving:

(i)    coal seam gas development; or

(ii)    large coal mining development; and

(b)    the action:

(i)    results or will result in a significant impact on a water resource; or

(ii)    is likely to have a significant impact on a water resource.

Penalty:    Imprisonment for 7 years or 420 penalty units, or both.

Note 1:    An executive officer of a body corporate convicted of an offence against this subsection may also commit an offence against section 495.

Note 2:    If a person takes an action on land that contravenes this subsection, a landholder may commit an offence against section 496C.

    (Emphasis added.)

44    In this regard, s 7 of the EPBC Act provides that “Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.” Part 2.5 deals with corporate criminal responsibility.

45    I note, as Adani Infrastructure submitted, that the civil penalty for a contravention of s 24D of 5,000 penalty units presently equates to $1.11 million for an individual, while 50,000 penalty units equates to $11.1 million for a body corporate. Furthermore, the pecuniary penalty prescribed for a breach of s 24E of 420 penalty units translates to a penalty of $93,240 and that it is possible that both a term of imprisonment and a pecuniary penalty may be imposed for a breach of s 24E. It is clear that the Parliament regarded civil contraventions and offences against these controlling provisions very seriously.

46    The so-called “definitions” of “coal seam gas development” and “large coal mining development” were inserted into s 528 by the Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 (Cth) which established the independent Expert Committee in Part 19, Div 2B of the EPBC Act. Among other things, at this stage in the evolution of the EPBC Act, those definitions defined the research and advisory functions of the Expert Committee and the circumstances in which its advice must be sought and taken into account. Sections 24D and 24E were enacted subsequently, together with amendments to ss 304, 305 and 306 by the Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth) (the 2013 Amending Act).

47    Section 528 defines “large coal mining development” to mean:

… any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):

(a)    in its own right; or

(b)    when considered with other developments, whether past, present or reasonably foreseeable developments.

48    The phrase “coal seam gas development” is also defined in s 528 to mean:

…any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):

(a)    in its own right; or

(b)    when considered with other developments, whether past, present or reasonably foreseeable developments.

(Emphasis added.)

49    The phrase “water resource” is defined in s 528 as having the same meaning as in the Water Act 2007 (Cth) (the Water Act).

50    Section 4(1) of the Water Act (as at December 2019) defines “water resource” to mean:

(a)    surface water or ground water; or

(b)    a watercourse, lake, wetland or aquifer (whether or not it currently has water in it);

and includes all aspects of the water resource (including water, organisms and other components and ecosystems that contribute to the physical state and environmental value of the water resource).

51    The importance of this is that a significant impact upon any of these aspects of the water resource, including organisms, other water systems, and ecosystems, will engage the prohibition. It is not simply a question of the volume of water being extracted and its potential impact on water supplies.

4.    BACKGROUND

4.1    The approval for the Carmichael Coal Project

52    The original referral for the Carmichael Coal Project was made by Adani Mining under the EPBC Act before the enactment of ss 24D and 24E. However, it appeared to be common ground that, by force of the transitional provisions to the 2013 Amending Act, the construction and operation of infrastructure for the sourcing of water for the mine, which comprised part of the Carmichael Coal Project, were required to be assessed under ss 24D and 24E.

53    The approval for the Carmichael Coal Project itself was not in evidence. However, it was not disputed, as Mr Lloyd SC explained for Adani Infrastructure, that:

… the entirety of the coalmining activity did get to be assessed. Now, that was, I accept, a different proposal. That was a proposal to take, I think, 12.5 gigalitres of water out of the Belyando River. And that was approved. So that was analysed, there was the subject of – that committee’s inquiry. It was – they had – I think my friend said, they had some concerns, but nonetheless it was approved. So that has already been analysed and already been approved. What this particular project does, as my friend indicated, the Belyando River runs into the Suttor River, and so this proposal is to take the water a little bit further down the river system. So instead of taking it out of the Belyando, it takes out of the Suttor after the Suttor and the Belyando have merged.

(T6/10/20 at p. 39.7–16.)

4.2    State government approvals and the referral for the NGWS Project

54    It will be recalled that an earlier controlled action decision made on 17 September 2018 (EPBC reference no. 2018/8191) with respect to the NGWS Project was set aside on 12 June 2019 by consent orders in earlier proceedings.

55    In the interim, on 29 May 2019 the Queensland Department of Natural Resources, Mines and Energy issued a water licence under the Water Act 2000 (Qld) to Adani Infrastructure for the taking of water from the Suttor River and the transfer of water to off-stream storage via the Belyando River anabranch. The water licence conditions included:

(1)    authorisation to supply water for the Carmichael Coal Project;

(2)    a maximum volume extraction limit of 12.5 GL from the Suttor River during a water year (ie a 12 month period);

(3)    a mean annual volume extraction limit assigned from the strategic reserve as provided in the Water Plan (Burdekin Basin) 2007 (Qld) of 10.8 GL from the Suttor River;

(4)    permission to take water from the Suttor River only when flow exceeds 2,592 ML/day; and

(5)    a daily volume extraction limit of 830 ML.

(Referral Decision Brief, CB 318.)

56    Subsequently, a valid referral (the Referral) from CDM Smith Australia Pty Ltd on behalf of Adani Infrastructure (the proponent) in respect of the NGWS Project (EPBC reference no. 2019/8508) was received by the Department on 16 September 2019 (controlled action reasons at [2]). In the Referral, Adani Infrastructure stated that it believed that the proposal was not a controlled action for the purposes of the EPBC Act (Referral at [5.2], CB 376–377). The Referral was for an action (the Action) which was substantially similar to that proposed by Adani Infrastructure under the earlier referral decided in September 2018 (Slattery affidavit at [15]).

57    The Action was to construct and operate the NGWS Project. Adani Infrastructure explained in its referral that the project:

… is related to another action (proposed by Adani Mining Pty Ltd) in the area, being the Carmichael Coal Mine and Rail Project (EPBC 2010/5736). The NGWS will provide a secure and reliable water supply under a commercial agreement to the operators of the CCP … In addition to having different proponents, The Action will require:

•    A separate financial investment decision; and

•    Separate applications for State and local government approvals.

(Referral at [1.2], CB 341; see also Referral at [1.16.1], CB 351.)

58    The Referral also explained that the Carmichael Coal Project is located approximately 160 km north-west of Clermont in central Queensland in the northern Galilee Basin (Referral at [1.2], CB 341).

59    More specifically, the Action was described as comprising the following components:

Water harvest and storage infrastructure

The harvest and storage infrastructure includes construction and operation of flood harvesting infrastructure that will pump water from the [Suttor River] into an off-stream storage, and then supply the water to the [Carmichael Coal Project] via pipeline.

(Referral at [1.2], CB 341.)

60    The main components of the water harvest and storage infrastructure (including a pipeline referred to as the Stage A pipeline) described in the Referral are as follows:

    an intake pump station, diesel fuel tanks and intake channel from the Suttor River (up to 1.15 hectare (ha) of vegetation clearing required);

    a buried pipeline from the Suttor River to the Belyando Junction dam along a 49km route, within a construction corridor of 30 metres;

    upgrade of the existing 2.2 GL Belyando Junction dam to a nominal 10 GL capacity;

    two laydown areas immediately adjacent to the dam and intake pump station area; and

    access tracks and a temporary workers camp to house workforce during construction.

(Referral at [1.2], CB 30; see also controlled action decision reasons at [5].)

61    The Referral also refers to the Stage B pipeline, explaining that it falls within the rail corridor of the Carmichael Coal Project and has already been subject to assessment under the EPBC Act as part of the approval for the Carmichael Coal Project Environmental Impact Statement (EPBC reference no. 2010/5736) (Referral at [1.2], CB 341).

62    While the referred action included the operation of water harvest infrastructure, Adani Infrastructure stated that it did not include the extraction of water in the referral because, in its view, the extraction of water would not have any significant impact on a matter of national environmental significance (Referral at [1.2], CB 342). However, Adani Infrastructure also explained in the Referral at [1.2] that:

The water take facilitated by The Action, has been assessed by the Queensland Government Department of Natural Resources, Mines and Energy (DNRME) and a water licence has been granted to enable that extraction. The water licence grants a capped allocation determined by impact assessment against Environmental Flow Objectives (EFOs) and Water Allocation Security Objectives (WASOs). The criteria establish the requirements for adequate environmental flows and water allocation for potable and agricultural purposes.

(CB 342.)

63    Public comments on whether the North Galilee Water Scheme Water Infrastructure project (EPBC reference no. 2019/8508) is a controlled action for the purposes of the EPBC Act were invited in the period 16 to 30 September 2019 (Slattery affidavit, annexure CHS-9 (CB 111)). ACF was among those who submitted comments pursuant to that invitation. Among other things, ACF submitted that the proposed action was a controlled action and that the controlling provisions included ss 24D and 24E of the EPBC Act (CB 114; see also the controlled action decision reasons at [15], CB 164).

4.3    The Referral Decision Brief from the Department and controlled action and assessment decisions

64    The Department provided a brief dated 9 December 2019 to the delegate recommending that a decision be made that the proposed action is a controlled action, the controlling provisions are ss 18 and 18A of the EPBC Act, ss 24D and 24E are not controlling provisions, and the proposed action should be assessed on preliminary documentation (CB 314–315). The delegate signed the decision record on 9 December 2019 and indicated his agreement with the recommendations and his acceptance of the reasoning in the Referral Decision Brief as the basis for his decision (CB 314–315). The delegate also signed letters on the same date in the terms proposed by the Department which advised Adani Infrastructure of his controlled action and assessment approach decisions (CB 395–396).

65    The delegate gave a statement of reasons for his controlled action decision on 17 February 2020 and for his assessment approach decision on 21 February 2020. The reasons given in each case embodied the reasoning proposed in the Referral Decision Brief, in line with the Minister’s indication on the decision record. Only the reasons for the controlled action decision need to be considered on the present application as the challenge to the assessment approach decision is purely derivative, as I have earlier explained.

4.4    The delegate’s reasons for the controlled action decision

66    The salient aspects of the delegate’s reasons for the controlled action decision may be summarised as follows.

67    After referring to public comments, including concerns as to whether the Action was a controlled action for the purposes of ss 24D and 24E, the delegate discussed comments from Commonwealth Ministers and from Geoscience. The delegate set out in some detail the concerns expressed by Geoscience. In essence, Geoscience considered that there “is potential for the proposed action to directly impact groundwater resources and groundwater dependant ecosystems in localised areas and impact on recharge processes across large areas” and that further information would be required in order to assess the significance of these impacts if the Department were of the view that the proposed action engaged the water trigger provisions (controlled action decision reasons at [21], CB 167).

68    The delegate also referred at [22] to the observation by Geoscience in this regard that there was confusion regarding the nature of the proposed action and, in particular, what constitutes the operation of the action, given the failure to refer the water extraction component and stated that he addressed these matters at [42]–[43] of his reasons. The delegate also noted Geoscience’s comments regarding the possible application of the water trigger but “consider[ed] that these views were addressed by the Department’s water resources section” (controlled action decision reasons at [23]; CB 168).

69    The delegate then turned to make findings on material questions of fact. The salient findings of fact may be summarised as follows.

70    First, the delegate found at [32] that the proposed action and the Carmichael Coal Project “do not form, or form part of, a larger action proposed to be taken by the same person” so as to enliven the discretion in s 74A of the EPBC Act because:

31. … the proposed action is to be taken by Adani Infrastructure Pty Ltd (ACN 606 764 82) which is a different legal entity to the CCMP which is Adani Mining Pty Ltd (ACN 145 455 205). In addition, the proposed action will require separate financial investment decisions, and will require separate applications for State and local government approvals.

71    Secondly, the delegate explained that he had considered all adverse impacts that the proposed action has, will have, or is likely to have on matters protected under Part 3 of the EPBC Act, and no beneficial impacts (at [40]). This accords with the required approach to determining whether an action is a controlled action and which controlling provisions apply: see s 75(2), EPBC Act (discussed at [29] above).

72    Thirdly, the delegate was satisfied that impacts resulting from water harvesting are impacts from the taking of the proposed action (at [43]).

73    Fourthly, with respect to public comments suggesting that the impacts of the Carmichael Coal Project on matters protected by Part 3 of the EPBC Act are indirect consequences or impacts of the proposed action, the delegate found that:

48. I was satisfied that the proposed action is related to the CCMP because the water will be used as part of mining operations at the CCMP (e.g. in dust suppression, coal washing and processing and long wall mining equipment cooling water) as well as for other purposes, such as for potable water supply. I accepted the Department’s advice that, in a general sense, the supply of water is a necessary input into the CCMP.

49. However, to use the language of section 527E(2) of the EPBC Act, I considered that the proposed action is a consequence or secondary action of the CCMP, rather than the CCMP being a consequence or secondary action of the proposed action. The proposed action represents an alternative to the water harvesting component of the CCMP. The CCMP, as approved, includes water harvesting, storage and supply infrastructure for extracting 12.5GL from the Belyando River. According to the referral documentation, further investigations undertaken by Adani Mining established that a different water extraction location would provide greater security and reliability in terms of water supply, leading to the proposal of the NGWSWI project. To put this another way, the proposed action has arisen, and will be constructed and operated, to meet a demand created by the CCMP.

50. Furthermore, the CCMP is not dependent on the proposed action because an alternative source of water supply is potentially available (i.e. the infrastructure approved as part of the CCMP). For these reasons was not satisfied that the proposed action facilitates, to a major extent, the CCMP.

51. In my view, this relationship between the proposed action and the CCMP does not satisfy the requirements of section 527E(2) of the EPBC Act. Accordingly, I did not consider that the impacts of the CCMP are impacts of the proposed action.

74    In the fifth place, the delegate decided that ss 18 and 18A of the EPBC Act are controlling provisions for the proposed action, being satisfied that there is a real chance or possibility that the water extraction associated with the proposed water harvest infrastructure will significantly impact on a number of listed threatened species and communities (controlled action decision reasons at [91]–[92]).

75    Finally, the delegate turned to address the public comments submitting that the proposed action should be assessed under the water trigger because it is designed to facilitate extraction of coal from the Carmichael Coal Project and as such should be treated as a “large coal mining development” or an action that “involves” large coal mining development. The delegate rejected those submissions for the following reasons:

Meaning of ‘coal mining activity’

95. For an action to be a ‘large coal mining development’, the action must be a ‘coal mining activity’.

96. Neither ‘coal mining activity’, nor any of its constituent parts, is defined in the EPBC Act.

97. The Department considered that the phrase ‘coal mining activity’, in its statutory context, refers to an activity which forms part of the process of extracting coal from a mine.

Meaning of involve

98. Sections 24D and 24E apply to actions that ‘involve’ large coal mining development. The Department considered that ‘involves’, in this context, means that some part of the action must comprise a ‘large coal mining development’ as defined in the EPBC Act, but it does not need to wholly comprise ‘large coal mining development’.

The proposed action is not a ‘large coal mining development’, nor does it involve ‘large coal mining development’

99. The proposed action consists of the construction and operation of infrastructure that will supply an input (i.e. water) to a mining operation, being the CCMP. The water supplied to the operators of the CCMP will be used as part of the extractive process, such as for cooling cutting surfaces and mining equipment and dust suppression, but also for other purposes, including equipment maintenance. However, the mining of coal from the CCMP forms part of a different action, which is being undertaken by a different proponent.

100. In my view, while the proposed action will provide water that will be used in the extractive process, the NGWSWI project is being carried out as an activity distinct from the process of extracting coal from a mine. The extraction of coal does not form part of the proposed action. Consequently, the proposed action is not a coal mining activity, nor does it ‘involve’ coal mining activity.

101. For these reasons, I was satisfied that the proposed action is not a large coal mining development, nor does it involve large coal mining development and, therefore, I decided that sections 24D and 24E are not controlling provisions for the proposed action.

(Emphasis added.)

5.    RELEVANT PRINCIPLES

76    The relevant principles of statutory construction are well established and were recently summarised by Perry and Stewart JJ in Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163 (Vincentia MC Pharmacy) as follows:

46    … In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ explained that:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

47    The importance of starting with the statutory context and text was recently emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 in the following passage:

14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

48    Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy” CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with [approval] in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking [1990] HCA 6[;] (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained with respect to Victoria’s equivalent to s 15AA, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction” (ibid); see also the discussion in Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) (Pearce, Statutory Interpretation) at [2.17]-[2.20]; Herzfeld P and Prince T, Interpretation (2nd ed, LawBook, 2020) (Herzfeld and Prince, Interpretation) at [7.20]-[7.30]. That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.

(Emphasis added.)

77    In this regard, as Allsop CJ said in Construction, Forestry, Maritime, Mining and Energy Union v Australia Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 384 ALR 668 at [5], “[t]he notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985” (citations omitted).

78    It follows, with respect, from these principles that the submission by the Minister that the delegate’s construction “is not inconsistent with the protective purposes of the Act” does not mean that that construction must be preferred (Minister’s submissions in chief at [36]); nor does Adani Infrastructure’s submission that the ordinary meaning of the phrase “coal mining activity” “is consistent with” the delegate’s construction mean that that construction is correct (Adani Infrastructure’s submissions in chief dated 22 July 2020 at [2]). While these considerations bear upon the question of construction (assuming them to be correct), s 15AA of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) requires the Court to adopt that construction which best promotes the purposes of the Act.

6.    CONSTRUCTION OF SS 24D AND 24E OF THE EPBC ACT

79    For the following reasons, ACF correctly contends that the delegate erred in his construction of the water trigger controlling provisions.

6.1    Textual and contextual considerations

80    First, it is clear that no narrow approach should be taken to the interpretation of legislation having the high public policy apparent in the objects of the Act, as Kiefel J said in Queensland Conservation Council (FCA) at [40]. That said, I accept that the task is “not [to] simply construe everything as broadly as conceivably possible because the Act is broadly about protecting things” (as Mr Lloyd SC submitted for Adani Infrastructure at T6/10/20 at p. 42.34–45; see also the Minister’s submissions in chief at [34]). Rather, as Gageler J observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232:

92. The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation “rarely pursues a single purpose at all costs” and that “[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling”.

(Citations omitted.)

(I note that s 33 of the Interpretation Act 1987 (NSW) to which Gageler J refers is in substantially similar terms to s 15AA of the Acts Interpretation Act.)

81    Secondly, the potentially detrimental impact on water resources (as defined under the Water Act) from large scale coal mining and coal seam gas extraction is the subject of protection under the EPBC Act because it is regarded as a matter of national environmental significance. This is apparent from the location of ss 24D and 24E in Division 1 of Part 3 which is headed “Requirements relating to matters of national environmental significance” (bearing in mind that the heading comprises part of the Act by reason of s 13(1) of the Acts Interpretation Act). This is also apparent from the objects of the EPBC Act in s 3(1)(a) and the focus of ss 24D and 24E upon “significant impact”. Thus the environmental assessment and approval process applying to the subject matter of ss 24D and 24E is no less rigorous than that afforded to any other protected subject matter in Part 3 of the EPBC Act, including the requirement to take into account the precautionary principle in deciding whether an action is a controlled action (s 391, EPBC Act; see also ss 3(1) and (2)). Indeed, in the case of ss 24D and 24E, the assessment and approval processes are more rigorous insofar as the advice of the independent Expert Committee on coal seam gas and large coal mining developments must be sought and taken into account.

82    Thirdly, other provisions of Part 3 of the EPBC Act prohibit the taking of actions that may have a significant impact on a protected subject matter such as listed migratory species, listed threatened species, or the marine environment per se. However, the prohibition in ss 24D and 24E of Part 3 is not simply against taking actions that may have a significant impact on a water resource. By reason of ss 24D(1)(a) and 24E(1)(a), water resources are protected against significant harm from actions only where “the action involves”, or an action is taken “involving”, coal seam gas development or large coal mining development. As such, only a subset of actions which may have a significant impact on water resources are protected, the purpose of subs (1)(a) of ss 24D and 24E being to require that there is a connection between the action and specific kinds of developments. The impacts of other actions on water resources, such as the construction and operation of a new power station or a dam where no such connection exists, will fall to be assessed only insofar as another controlling provision is engaged. As, for example, Mr Lloyd SC explained for Adani Infrastructure, “[s]o, while section 18 applies to any proposed action that may have a significant impact on a list[ed] threatened species, section 24D(1) does not apply to the universe of actions that are likely to have impacts [on] water resources” (T6/10/20 at p. 42.17–20). As a consequence, as Mr Lloyd SC submitted, the task in construing ss 24D and 24E is to work out the limits of what is protected.

83    Fourthly, in Vincentia MC Pharmacy, Perry and Stewart JJ explained that:

50. … it is generally accepted that the proper course is to “read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome”: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J). Furthermore, as Campbell JA (Beazley and Ipp JJA agreeing) explained in San v Rumble (No. 2) [2007] NSWCA 259 (Rumble) at [52]:

… substituting a definiens [i.e. words or phrases comprising the definition] for a definiendum [i.e. the word or phrase defined] is not the only way of applying a statutory definition to a provision that is being construed. As Windeyer J said in Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (at 69):

“A statutory definition may be only ‘a mechanical device to save repetition’ …; or it may, by explanation rather than by synonymous expansion, indicate the particular sense in which a word or phrase is used.”

84    Thus, McHugh J explained in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] “the function of a definition is not to enact substantive law. It is to provide aid in construing the statute”.

85    However, the so-called definitions of “coal seam gas development” and “large coal mining development” are not definitional in any of these senses, as was the case with the “definition” considered in Vincentia MC Pharmacy. Rather, they require an evaluative assessment to be made as to the extent of the impact on water resources by any coal mining activity or activity involving coal seam gas extraction alone or with any other developments, in order to determine whether the “water trigger” in ss 24D and 24E is engaged. In other words, they enact substantive law by prescribing criteria which must be met in order to determine whether ss 24D and 24E apply.

86    Leaving aside the undesirability of such a drafting approach, it follows from the so-called definitions that ss 24D and 24E are also unique in the scheme of the EPBC Act in that they require the impact on a water resource to be assessed at two levels:

(1)    with respect to “the action”; and

(2)    with respect to relevant “activit[ies]”.

        (T6/10/20 at p. 49.27–36 (Mr Lloyd SC).)

87    Thus, taking s 24D(1) as the example, if the criteria in the “definitions” of “coal seam gas development” and “large coal mining development” respectively are inserted into the text of s 24D(1) itself, the section would relevantly read as follows:

A corporation must not take an action if:

(a)    the action involves;

(i)    coal seam gas development, i.e., any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable; or

(ii)    large coal mining development, i.e., any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable; and

(b)    the action:

(i)    has or will have a significant impact on a water resource; or

(ii)    is likely to have a significant impact on a water resource.

(Emphasis added.)

88    Thus, a distinction is drawn between “the action”, on the one hand, and “large coal mining development” or “coal seam gas development”, on the other hand. Specifically, while “the action” itself must be likely to have a significant impact on water resources under subs (b), it suffices to satisfy the criteria for a “large coal mining development” or “coal seam gas development” under subs (a) if the impact of the “development” on water resources is likely to be significant when considered with other developments. It follows that subss (a) and (b) serve distinct purposes, although this does not mean that the question of whether the development is likely have a significant impact on water resources must be considered in isolation from the impacts of the proposed action.

89    In the fifth place, as earlier explained, on the delegate’s construction the connection required under subs (a) was limited to the physical extraction of lumps of coal from the ground. In support of this construction, Adani Infrastructure submitted that the two expressions, coal seam gas development and large coal mining development:

… run together through the EPBC Act. So they’re always used pretty much in conjunction with each other. … We say that it – that this expressly focuses upon an activity that is extractive in nature, that involves coal seam [gas] extraction. In the other one, it is coal mining activity, and that is also activity, which is extractive in nature, but of a – of coal rather than a gas.

(T6/10/20 at p. 47.33–47; emphasis added.)

90    On this construction, there is considerable force in the submission by ACF that “all that would be left” for the water trigger controlling provisions to govern “would be ground water aquifer impacts, such as flow ingress, caused by digging the hole… And potentially, surface water quality impacts and environmental damage to surface water resulting from line [sic] storage” (T6/10/20 at p. 36.16–21). With respect, while Adani Infrastructure sought to deny these consequences of the delegate’s construction, it did not satisfactorily explain why ACF’s submission was incorrect.

91    In any event, the delegate’s construction does not, in my view, pay sufficient regard to language and context, and creates artificial distinctions.

92    Turning first to the word “involve”, while this word may mean “embrace”, it can also mean (among other things) “affect” or “entail”. For example, the Macquarie Dictionary meanings include “1. to include as a necessary circumstance, condition or consequence; imply; entail. 2. to affect, as something within the scope of operation. 3. to include, contain, or comprehend within itself or its scope….” The definition in the Oxford Dictionary includes similar potential meanings (see at paragraphs 6(c) and (d)). The task of statutory construction should not, of course, be a slave to dictionary definitions. However, these definitions usefully illustrate that, while the word connotes the existence of a connection, the precise nature of the connection may vary according to the context in which it is used. That being so, a constructional choice is available which must be resolved, as I have earlier explained, by reading the provisions in context. In this case, in my view the word “involves” was intended to convey that the connection between the action and the specified developments was a looser connection than might have been required if, for example, the Parliament had required that the action “be” or “be part of” a specified development, and necessitates an evaluative assessment of the closeness of the relationship or connection between the action and the development.

93    That ss 24D and 24E were intended to have a broader construction than that accepted by the delegate is supported by other textual considerations.

(1)    Given that the so-called definitions of “large coal mining development” and “coal seam gas development” incorporate substantive criteria, this is not a case where the text of the “definitions” can simply be substituted for the “defined” term. As such, contrary to the respondents’ submissions, it would not be circular to construe the words of the “definition” having regard to the term supposedly defined: cf The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; cf also Adani Infrastructure’s submissions in chief at [43] and the Minister’s submissions in chief at [16]). Rather, regard can be had to the choice of the word “development” in ss 24D and 24E in construing the scope of the water trigger controlling provisions. That word suggests in its ordinary meaning that Parliament did not intend to limit coal seam gas and large coal mining developments to the physical process of mineral or coal seam gas extraction, that is, “the detaching of lumps of material from the position in which in a state of nature they form part of the soil” (as Kitto J described mining in its narrow sense in Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 240 (Broken Hill (Kitto J)). Rather, the word “development” is suggestive of a broader concept which embraces, at a minimum, those activities which are integral to the mining of coal.

(2)    Consistently with this construction, the so-called definition of large coal mining development is not limited to “coal mining”. Rather it embraces “any coal mining activity”. In line with orthodox principles of statutory construction, all of these words must be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. In this case, as ACF submits, to confine the phrase “coal mining activity” to “the process of extracting coal from a mine” as construed by the delegate leaves no work for the word “activity” to do. Yet the use of the word “activity”, especially when combined with the word “any”, is strongly indicative of an intention to capture a broad range of activities within the concept of a large coal mining development and certainly those so closely associated with the mining of coal that mining could not be undertaken without the activity in question.

(3)    Equally, the phrase “any activity involving coal seam gas extraction” is suggestive of an intention to capture activities integral to coal seam gas extraction and not to limit the concept of coal seam gas development to the physical extraction of coal seam gas. Otherwise, there is no reason why the Parliament could not have simply have referred to “coal seam gas extraction” simpliciter in the definition of “coal seam gas development”. It follows that the construction for which ACF contended in oral submissions does not lead to disharmony in the scheme of the provisions by introducing a significantly broader field of operation for the definition of “large coal mining development” as opposed to what Adani Infrastructure referred to as its “cognate definition” of “coal seam gas extraction” (cf Adani Infrastructure’s submissions in chief at [30]–[31]). Both were, in my view, intended to have a similarly broad scope.

94    Sixthly, this construction best promotes the purposes of the EPBC Act and must therefore be preferred in accordance with s 15AA of the Acts Interpretation Act. As ACF submitted:

41.    The evident object of the statutory scheme, of which the phrase “large coal mining activity” in s 528 forms a part, is to regulate large coal mining developments and their impacts on water resources.

42.    This strongly suggests that the object of the statutory scheme is not limited to the process of coal mining itself. Rather, the object of the scheme is directed to the range of activities undertaken for a “large coal mining development” and which have, or are likely to have, a significant impact on water resources and prohibit any such action that has not been formally assessed and approved under the Act.

95    That purpose is confirmed by the 2013 Second Reading Speech with respect to the Bill inserting ss 24D and 24E into the EPBC Act (s 15AB, Acts Interpretation Act; see also The Bay Street Appeal at [5] (Allsop CJ)). In particular, in the 2013 Second Reading Speech, the Minister explained that:

The challenge we have had up until now is that people quite reasonably expect the minister for the environment and water to take into account, by law, the impacts of coal seam gas and large coal mining on water resources. They want to know that I am considering: if there is an irreversible depletion and contamination of our surface and groundwater resources; the impacts on the way critical water systems operate; and the related effects on our ecosystems.

(Emphasis added.)

96    While the respondents submitted that the 2013 Second Reading Speech supported their narrow construction because the Minister emphasised that the amendments were “not a broad trigger”, that statement is explained by the previous paragraph where the Minister said that:

The amendment does not seek to invoke the Commonwealth in all water decisions. The trigger will not capture small projects such as farm dams. The amendments will create a new matter of national environmental significance for coal seam gas and large coalmining developments which are likely to have a significant impact on a water resource. It will provide the strong legal basis for protection that the community wants.

97    As such, the Minister was saying no more than that the water trigger controlling provisions were confined to coal seam gas and large coal mining developments. His words lend no support to the view that those developments should be narrowly construed.

98    It follows that the mischief to which ss 24D and 24E are directed does not support the narrow construction of the water trigger controlling provisions adopted by the delegate. That construction would potentially leave adverse impacts of the kind described in the 2013 Second Reading Speech unregulated by the Commonwealth in circumstances where any later, alternative water source for a coal mine was proposed.

99    This last point is particularly important. It highlights the anomalous results which would flow from the construction for which the respondents contend. In this regard, as Mortimer J said in Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1:

231. … Reasoning by reference to consequences can be seen as another way of testing various constructional choices against the identified purpose of the provision in question, read in the context of the purposes of the legislative scheme as whole. Reasoning by reference to consequences may also help elucidate the situation to which Gleeson CJ referred in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6]: namely that statutes involving comprises or striking balances between competing interests may not be susceptible to an assumption that the scheme has a singular purpose. Sometimes, teasing out the consequences of various constructions can assist in determining whether the provision in issue is one of those where there are competing interests and a balance to be struck, and how the statute strikes that balance.

100    Thus, on the one hand, Adani Infrastructure accepted that where a person seeks approval for a coal mine and the referral explains that water will be sourced from a particular location and involve particular infrastructure, these aspects of the proposal would constitute part of the referred action. Adani Infrastructure also accepted that, because the referral in such a case would involve a coal mining activity, the action would constitute a “large coal mining development”. As a result, Adani Infrastructure accepted on this scenario that all water resource impacts would have to be assessed as part of the initial assessment and approval processes for the mine (see eg T6/10/20 at p. 44–47, esp at p. 47.15, and p. 63.36–64.2). Indeed, Mr Lloyd SC on behalf of Adani Infrastructure submitted that “the legislature, we say, would have known that in order for an approval of a coal mine to be approved, there must have to be some kind of water supply done” and that it was unrealistic to suggest that approval would initially be given to a coal mine in the absence of this aspect of the proposed action being included in the referred action (T6/10/20 at p. 44.45 (emphasis added). In other words, he submitted that “in practice, in relation to a mine proposal, it’s hard to see that a mine would ever be approved without being satisfied of water arrangements. And so, at that inception stage, that would be so.” (T6/10/20 at p. 64.17–18, emphasis added).

101    On the other hand, Adani Infrastructure submitted that if an alternative or new water source and associated infrastructure was proposed later in time after the initial approval for the mine, the proposed action would not constitute a “coal mining activity” but “just a supply of water to a coal miner” (T6/10/20 at p. 64.24). As such, on its argument, in this scenario the proposed action would not engage the water trigger in ss 24D and 24E of the EPBC Act irrespective of whether or not the proponent was a different legal entity for the purposes of s 74 and irrespective of whether its impact on water was as significant, or indeed greater, than that initially assessed with the original coal mine proposal.

102    Adani Infrastructure appeared to submit that this construction was consistent with the objects of the Act because what was now sought was “just a supplemental or alternative source of water” in circumstances where the original approval of the coal mine would have assessed the impacts on water resources albeit from a different source (see eg T6/10/20 at p. 45.2–10). However, that submission cannot, with respect, be correct. Among other things the impacts must be assessed not only by reference to the volume of water extracted, but by reference to all aspects of the water resources including organisms, ecosystems, and other water systems (see the definition of “water” at [50]–[51] above). Those impacts will of their nature vary according to the location from which the water is to be extracted.

103    No other reason was given by the respondents as to why the Parliament would have intended that water impacts be assessed when approval is being sought for a coal mine, but not if it is later proposed to construct and operate infrastructure to harvest water for the mine from an alternative source. Nor is any such reason apparent. To the contrary, if the impact on water resources at the time of the original approval was regarded as a matter of national environmental significance, there is no reason why it would lose that significance merely because the issue arose subsequently in relation to an alternative water source. That would undermine the objects of the EPBC Act in s 3(1) and the purpose of the water trigger controlling provisions as elucidated by the Minister in the 2013 Second Reading Speech.

104    In the seventh place, it is clear that care must be taken in relying upon different terms construed in different statutory contexts (as the Minister submits in his submissions in chief at [26]). Nonetheless, some support for attributing a broad construction to the expression “any coal mining activity” may be derived from a similarly broad construction adopted with respect to the phrase “mining operations” in legislation giving favourable treatment to taxpayers engaged in that activity: see by analogy the reasoning in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [308] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in construing the phrase “mining purposes” in a mining lease. Thus in Broken Hill (Kitto J) at 244–245, Kitto J held that the expression “mining operations”:

… is wider than “the working of a mining property”. It embraces not only the extraction of mineral from the soil, but also all operations pertaining to mining: Parker v Federal Commissioner of Taxation. Thus it comprehends more than mining in the narrow sense which imports the detaching of lumps of material from the position in which in a state of nature they form part of the soil. It extends to any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the mineral … Likewise it extends to any work done on the property subsequently to the winning of the mineral (e.g. transporting, crushing, sluicing and screening) for the purpose of completing the recovery of the desired end product of the whole activity … In each case it is the close association of the work with the mining proper that gives it the character of operations pertaining to mining.

(Citations omitted and emphasis added.)

105    On appeal, Barwick CJ, McTiernan and Menzies JJ disagreed with Kitto J’s second proposition insofar as Kitto J regarded the phrase “as extending to the disposal of the product mined”. Importantly for present purposes, however, their Honours agreed that “mining operations” covers “any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the mineral” (Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 268 at 272–274.

106    Furthermore, this decision illustrates that to attribute such a broad meaning to the term “mining operations”, and by analogy, “mining activities”, does not impermissibly read words into the expressions used, as opposed to giving effect to the language which is used (cf the submissions of Adani Infrastructure in chief at [41] and the Minister’s submissions in chief at [23]).

6.2    Does the penal nature of the provisions support a narrow construction?

107    Adani Infrastructure also submitted that, to the extent there was ambiguity in the meaning of ss 24D and 24E and their associated definitions, they should be read narrowly because contraventions of s 24D attract potentially significant civil penalties while s 24E fixes the scope of an offence which carries with it a penalty of imprisonment. In this regard, Adani Infrastructure relied upon the observations of Gibbs J (as his Honour then was) in Beckwith v The Queen (1976) 135 CLR 569 at 576 (endorsed by the High Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 145 and Waugh v Kippen (1986) 160 CLR 156 at 164) that “[i]n determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences…”. However, as Gibbs J also observed, the rule that statutes creating offences are to be strictly construed “… has lost much of its importance in modern times” and is perhaps a rule “of last resort” (ibid). That caveat was reiterated by Nettle and Gordon JJ in Re Day (No 2) [2017] HCA 14 at [276] and in the joint judgment in Aubrey v The Queen [2017] HCA 18 at [39]. Adani Infrastructure further submitted that:

37.    Although the presumption that penal statutes must be construed strictly is slight, it is nevertheless part of the context in which the provision falls to be construed: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [57] (Hayne, Heydon, Crennan and Kiefel JJ). In the present case, Adani submits that the ordinary meaning of the phrase “coal mining activity” is clear for the reasons above. However, to the extent the Court discerns any ambiguity it ought not to adopt an expansive reading of the phrase. This is particularly so in circumstances where a constellation of activities associated with coal mining could conceivably engage the criminal proscription in s 24E if the construction advanced by the applicant were to be adopted. The construction advanced by the applicant would extend the reach of the definition to all activities “undertaken for” a “large coal mining development” (AS [42]). A nebulous construction of this kind would create considerable uncertainty in the application of provisions the breach of which may carry a significant custodial sentence or civil penalties of up to $11.1 million.

108    In this case, I do not consider that any need arises to apply this “rule” or “presumption” of “last resort”. Read in context, the meaning of the provisions in question is clear. Further and in any event, it cannot only be said that the presumption is “slight”, as Adani Infrastructure accepts; it loses any real force in the context of the particular legislative scheme created by the EPBC Act. By their very nature, the controlling provisions containing civil penalty and criminal offences will generally, if not inevitably, involve complex and evaluative scientific assessments of environmental impacts. In the case of water impacts from large coal mining developments and coal seam gas extraction, this is reflected in the creation of the Expert Committee and the strict requirements as to the expertise of its members (see above at [39]). The Act deals with the potential uncertainty which a scheme of this nature introduces for proponents by:

(1)    ensuring that where there is any doubt as to whether or not a proposed action is a controlled action, the matter must or may be referred to the Minister to determine whether or not it is a controlled action; and

(2)    providing that the controlling provisions do not apply to an action if, having been referred, it is approved or there is a decision of the Minister that the action is not a controlled action for the controlling provisions in question

(see above at [18]–[22]).

109    An analogy may be drawn in this regard with the decision in Queensland Conservation Council (FCA) (upheld on appeal in Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190; (2004) 139 FCR 24). In that case, Kiefel J held that the Minister wrongly considered that downstream pollution by irrigators, whether likely or not, was incapable on a proper construction of the EPBC Act, of constituting an adverse impact of the proposed action, being the construction and operation of a dam. In so holding, Kiefel J rejected the Minister’s contention that a wide construction of the requirement in s 75 of the EPBC Act so as to require the Minister to assess “all adverse impacts … the action … is likely to have” including impacts of activities undertaken by other persons, would impermissibly extend the liability of person undertaking activities for offences under the EPBC Act on the ground that:

37. The Environment Minister’s submission assumes that a person has undertaken an action without referring the matter to the Minister, which is the very process under consideration. I accept that a person would be at risk of contravening the Act if they determined not to refer an action, save in the clearest possible cases. The legislation no doubt proceeds upon the assumption that persons will properly inform themselves as to the impacts their actions may have upon these aspects of the environment. Importantly, in my view, submissions for the Minister overlook the nature of the process engaged in when there is a referral to the Minister, as there was in the present case. It is one which will provide persons with protection from liability. If the Environment Minister considers that a proposed action will not have a significant impact upon an area or upon a species one might reasonably conclude that a proponent is safe from prosecution if they proceed. If the Environment Minister determines that it is a ‘controlled action’ assessments will be undertaken which will permit a decision as to whether to approve the action under Part 9. If it is not it will not proceed. If it is approved it is effectively exempt from the prohibitions. Rather than support a view of the enquiry under s 75 as narrow, this suggests a wider enquiry as necessary.

(Emphasis added.)

6.3    Relevance of the Minister’s capacity to impose and vary conditions for approval

110    Finally, Adani Infrastructure contended that the mischief which ACF’s construction is intended to address is met by the capacity for the Minister to impose conditions on an approval under ss 134 and 136, and the Minister’s discretion to vary the conditions where a proponent proposes to act in a manner which is inconsistent with the condition under s 143(1)c) and (1B) (Adani Infrastructure’s supplementary submissions dated 19 October 2020 at [20]).

111    Section 143 of the EPBC Act confers a discretion on the Minister to revoke, vary, or add to the conditions attached to an approval under Part 9 of the Act including following a request by the holder of an approval under s 143(1B), where:

(1)    the action has had (or the Minister believes that it will have) a significant impact on a matter protected by a controlling provision which was not identified in assessing the action and the Minister believes that it is necessary to revoke, vary or add a condition to protect the matter from the impact (s 143(1)(b)); or

(2)    the action has had (or the Minister believes that it will have) a significant impact on a matter protected by a controlling provision, the Minister is satisfied that the impact is substantially greater than that identified in assessing the action, and the Minister believes that it is necessary to revoke, vary or add a condition to protect the matter from the impact (s 143(1)(ba)).

112    As I earlier noted, there was limited evidence as to the conditions which attached to the original approval for the Carmichael Coal Project. Nor was it suggested that those conditions would require variation if Adani Mining were in fact to harvest water from the alternative source proposed by Adani Infrastructure, although the question was not specifically addressed.

113    In any event, the short point is that general provisions dealing with the variation of conditions attaching to existing approvals for actions do not provide a reason for construing the water trigger provisions in the narrow manner adopted by the delegate, given the compelling textual and contextual considerations which have led me to a contrary view.

7.    CONCLUSION

114    For the reasons set out above, the Minister’s delegate erred in his construction of ss 24D and 24E of the EPBC Act and their relevant definitions, and thereby fell into legal error. Contrary to the delegate’s view, an action will involve a large coal mining development for the purposes of the water trigger controlling provisions if the action is so closely associated with the mining of coal as to be integral to it. That being so, given the delegate’s findings at [48] and [99] of the controlled action decision reasons (set out at [73] and [75] above), it follows that the operation of infrastructure for the harvesting and supply of water from the alternative location for the proposed 60-year period is properly characterised as integral to the conduct of mining operations at the Carmichael Coal Project.  As such, the proposed action involves a coal mining activity within the “definition” of large coal mining development in s 528 of the EPBC Act, subject importantly to the questions of whether that development is likely to have the significant impact on water resources also required by the “definition” and satisfaction of the criteria in subs (1)(b) of ss 24D and 24E.  The question of whether the particular action proposed by Adani Infrastructure meets the criteria for the water trigger in ss 24D and 24E so as to engage these controlling provisions must therefore be remitted to the Minister for decision.

115    It follows that the application for judicial review must be allowed and the first and second respondents are to pay the applicant’s costs as agreed or assessed. It also follows that:

(1)    the controlled action decision under s 75(1) of the EPBC Act must be set aside at least insofar as the delegate found that ss 24D and 24E were not controlling provisions;

(2)    as a consequence of (1), the assessment approach decision under s 87 of the EPBC Act must be set aside (as the parties agree); and

(3)    the matter must, at least to the extent set out at (1) and (2) above, be remitted to the Minister for determination according to law.

Associate:

Dated:    25 May 2021