08 May 2008
Key Points:
The referrals and assessment process is flexible enough to allow the alteration of the proposal as the process is underway. It is up to the Federal Minister to determine whether he or she requires further information.
The deepening of the shipping channels in Port Philip Bay, the Heads and the Yarra River has been contentious since the project was first referred under section 68 of the Environment Protection Biodiversity Conservation Act 1999 (EPBC Act) to the Federal Environment Minister in February 2002. On 20 December 2007 the Minister approved, with conditions, the proposed action.
Blue Wedges Inc, an organisation established with the aim of protecting the waters of the Port Phillip, Western Port and Blue Wedges Bays, challenged the December 2007 decision. The Federal Court challenge was heard and dismissed on 15 January 2008. A Statement of Reasons for the grant of approval was made available on 18 January 2008. Blue Wedges subsequently made an application in relation to the Statement under the Administrative Decisions (Judicial Review) Act. That challenge was dismissed by the Federal Court on 28 March 2008.[1]
This article will focus on the decision of Justice Heerey on 15 January 2008 to dismiss the application (Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8) because it is more illustrative in terms of the process of referral and assessment under the EPBC Act.
The grounds of application
The Minister's Approval decision was challenged on two grounds. First, Blue Wedges argued that the action referred to the Minister in 2002 is different to the action assessed in 2007. As a consequence, there was no lawful basis for the Federal Minister to approve the project because it had not been the subject of a referral, a decision under section 75, the selection of mode of assessment under section 87 or the receipt of assessment documentation under section 133.
In the alternative it was argued that the 2007 assessment did not adequately assess the relevant impacts of the proposal and/or provide enough information to enable the Federal Minister to make an informed decision.
The application was dismissed on both grounds by Justice Heerey.
In relation to the first argument, Justice Heerey found that changes could be made to a proposed action between referral and Approval. In fact the recently inserted section 156A supported this conclusion. The Explanatory Memorandum for the 2006 amending Bill noted that:
"This amendment allows a person who had referred an action to the Minister for assessment and approval to request the Minister to accept a variation to the action. ...The purpose of this amendment is to provide greater flexibility for dealing with changes during the assessment process by providing a formal process for the variation of proposed actions."
Justice Heerey found that the formal process for seeking a variation to the original proposal coupled with the words in section 156A that a person " may... request the Minister to accept a variation... of the original; proposal" suggested that informal changes to proposals could be made. Furthermore, he observed that it could not "possibly be the case that literally no changes at all can take place in the action between referral and approval." The function of the referral process is "not to fix in stone all the details of a proposed action for the subsequent approval process."
Justice Heerey also observed that some changes to the detail of proposals might be positive for the environment. If the argument advanced by Blue Wedges was correct, then this would be a strong disincentive for proponents to keep looking for environmentally friendly changes to a project.
Although there were differences between the 2002 project as referred and the project assessed in 2007, Justice Heerey found that "the action as described in the referral was to deepen the shipping channels at Port Phillip Heads, in Port Phillip and the Yarra River and its approaching channels." The Project the subject of the Approval decision was also for deepening shipping channels.
In relation to the second argument Blue Wedges argued that in treating the project in its 2007 form and the project as referred in 2002, as the same action, the assessment was limited in that it did not consider all the matters under Part 3 of the EPBC Act. Justice Heerey found that the Minister had power to request specified information relevant to the making of the decision under section 133 and the exercise of this power depends on the Minister's judgement. Accordingly the Minister was not prevented from making the decision.
Costs
Notwithstanding the usual consequence that costs follow the event, no costs order was made. Justice Heerey referred to the decision in Oshlack v Richmond City Council (1998) 193 CLR 72. In that case the High Court found that in considering the award of costs, it was appropriate for the trial judge to take into account such matters as the unsuccessful party's motivation to ensure obedience to environmental law and preservation of an endangered koala habitat, the fact that a significant number of members of the public shared that view and that the basis of the challenge was arguable.
In the present case, Justice Heerey referred to the matters of high public concern, novel questions of general importance as to the approvals process under the EPBC Act and a disparity in the level of representation of the parties.
Conclusions
The decision of 15 January 2008 provides some guidance for proponents. In particular, Justice Heerey found that there was flexibility in the referrals and assessment process in that there is scope to alter the proposal as the process is underway. To hold otherwise would, in his words, be a strong disincentive for proponents to keep looking for environmentally friendly changes to a project.
Further, it is up to the Federal Minister to determine whether he or she requires further information and to utilise the sections in the EPBC Act which allow the Minster to request additional information from the proponent or any other person the Minister considers appropriate. Justice Heerey concluded that the fact that the "Minister has made the Approval Decision in itself provides a very strong indication that the Minister believed that he had sufficient information to make an informed decision."
[1] Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 (28 March 2008), per Justice North. Blue Wedges contended that the Minister failed to take principles of ESD into account, failed to consider a number of relevant matters (the impact of maintenance dredging, the impact of oil or chemical spills and the impact of the removal and disposal of toxic sediment). It was also argued that the Minister failed to follow procedure required by the Act in relation to inviting comments from other Commonwealth Ministers in accordance with the EPBC Act.
