Decision on Wilderness Society’s challenge to EPBC decision

Earlier this year, The Wilderness Society Tasmania (TWS) sought a judicial review of the Federal Environment Minister’s decision that the Halls Island, Lake Malbena development is “not a controlled action” under the [federal] Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  This is the key legislation for implementing Australia’s World Heritage obligations.

This judicial review is separate from the not yet finalised planning appeal (undertaken by TWS, TNPA and two individuals) relating to Central Highlands Council’s decision not to grant a planning permit for the Halls Island proposal.

The TWS case, heard in the Federal Court on 26th March 2019, questioned whether the Minister’s delegate made a legal error when concluding that no further assessment by the Commonwealth was required, and in not imposing any conditions to ensure significant impacts on World Heritage values were avoided.

It was an important test of how decisions about assessment requirements are made with consequences for future development in the TWWHA, and for the operation of federal environmental laws more broadly.

The 55 page judgement, released today, is still being analysed but here is an initial attempt to explain the most significant aspects in non-legal terminology.

Despite the success of only two of TWS’ three grounds for review, the judgement vindicates TWS’ decision to challenge the original Ministerial decision that the Halls Island proposal was not a controlled action.

The original Ministerial decision (formally described as a notice under s 77 of the EPBC Act) concluded that the Halls Island proposal was not a controlled action without requiring any specific mitigation measures to ensure that it did not impact on World Heritage values.  i.e. it relied solely on whatever mitigation measures might be required by the Tasmanian government.

The key point of Justice Mortimer’s decision is that the original notice is to now be set aside and reissued with conditions which are to be negotiated between the Commonwealth and TWS.

This is not the total reassessment of the proposal that was hoped for but it means that enforceable conditions will be imposed by the Commonwealth and will clarify that the approval applies only to Stage One of the proposed development. Stage Two (walks to Mount Oana and visits to Aboriginal cultural sites) will require a separate approval.

Justice Mortimer’s statement of reasons contains some strong criticism of the decision making process.  For example:

  • ‘… what is not intended … is that a de facto assessment process be conducted by the Department, in negotiation with a proponent and out of public view’.
  • ‘… what is being assessed … is the adverse impacts of the action, not the adverse impacts of the action once all avoidance and mitigation measures have been applied. Any other approach deprives the public of the participation the World Heritage Convention contemplates will be applied to the protection and conservation of World Heritage values in listed properties’.
  • ‘… the RAA process was incomplete and only “draft approval” had been received …’.
  • ‘That is a clear example of … treating the non-statutory, State-based RAA process as the de facto assessment process. The … EPBC Act does not contemplate that will occur, outside the methods (such as bilateral agreements) for which it provides’.

Justice Mortimer has also directed that the Minister should meet the costs incurred by The Wilderness Society in bringing this action.

The case demonstrates the need for legislative reform (a ten-yearly review of the EPBC Act has recently been announced).  It should not be necessary for an environmental non-government organisation to undertake an expensive legal challenge to ensure that a proposal is properly assessed.

It is expected that a more detailed analysis of the decision will be published on the EDO website later this week.

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