Wind Farm faces EPBC Act approval challenge over treaty obligations

Is a wind farm project required to show consistency with Australia’s international obligations under bilateral treaties protecting listed migratory species?

The Federal Court decided that consistency with international treaties is not an essential precondition for approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Instead, it is just one of many factors to consider when granting approval.

Gawara Baya Wind Farm Project

In Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532 an environmental charity sought to challenge an approval obtained by Upper Burdekin Wind Farm Holdings Pty Ltd (the Proponent) for the Gawara Baya Wind Farm Project in North Queensland. The project involves the construction, operation, and decommissioning of up to 69 wind turbines. The project site is adjacent to the Wet Tropics World Heritage Area and is home to several endangered bird and bat species. Originally the project involved up to 136 wind turbines, but was subsequently varied to 69 turbines.

A delegate of the Commonwealth Minister for Environment determined that the project required EPBC Act approval due to its potential impact on listed threatened species and ecological communities, listed migratory species, world heritage values, and national heritage values. The project was approved subject to conditions following an assessment of the project's impacts on the identified matters of national environmental significance.

International treaties: CAMBA, JAMBA and ROKAMBA

Rainforest Reserves Australia Inc alleged that the wind turbines would kill, injure or disturb endangered or protected species of birds and bats inconsistently with Australia's obligations under international treaties to protect Migratory Birds (CAMBA, JAMBA and ROKAMBA treaties).

Rainforest Reserves argued that the Minister's decision to approve the project was invalid as it was inconsistent with the international treaties, as the treaties prohibited the "taking" of migratory birds. Rainforest Reserves argued that acting consistently with the international treaties was an essential pre-condition for approval under the EPBC Act.

Federal Court’s decision

The Federal Court dismissed the challenge, and held that compliance with international treaties is not an essential precondition to approval, but just one of many factors which the Minister must consider in the decision-making process.

In any event, the Court held that the approval of the project did not authorise the taking of birds contrary to the international treaties. Rather, it sought to implement a series of measures designed to control and eliminate or minimise the risk of death, injury or other harm to the birds. Therefore, the approval of the project on the basis of these conditions did not amount to conduct that was inconsistent with the obligations in the treaties.

Other grounds of challenge

Uncertainty in the conditions – tantamount to "secondary consents"

Rainforest Reserves also argued that certain conditions attached to the decision made the approval uncertain because they involved ambiguous methods for determining thresholds in the Bird and Bat Management Plan, and because leaving matters to a later Ministerial approval was tantamount to a "secondary consent ".

The Court rejected this argument and decided that:

• the conditions were not uncertain as the conditions provided for the parameters within which the specific thresholds were to be set for each species, and the estimated population for each species was to be determined within parameters prescribed by the conditions;

• the conditions relating to the recommencement of turbines and the later approval of the Bird and Bat Management Plan were not of a character that deferred the determination of the proposed action (or its scope and nature) to a later approval. Rather, the conditions set out mitigation measures that were required in order to make the environmental impacts of the project acceptable.

Scope of the approved project compared to referred project

Rainforest Reserves argued that the action that was approved went beyond the scope of the action that was referred to the Minister, on the basis that:

• the referred action was the "operation of a wind farm subject to the mitigation measures contained in the project's Bird and Bat Management Plan"; whereas

• the Minister's decision notice recorded approval of "the operation of a wind farm subject to conditions" but not expressly referring to the Bird and Bat Management Plan.

The Court rejected Rainforest Reserves' argument, and noted that its interpretation above would not be a fair reading of the approval when read together with the imposed conditions.