Bob Brown Foundation Inc v Minister for the Environment

1. The matter be listed for mention on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant, Bob Brown Foundation Inc, seeks judicial review of a decision of a delegate (the Delegate) of the first respondent (the Minister) made on 6 January 2022 that certain design and assessment works proposed to be undertaken by the second respondent (MMG) do not constitute a "controlled action" for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) (the Decision). 2 The proposed works are described in a referral made by MMG pursuant to the provisions of the EPBC Act, namely referral 2021/9079 dated 19 October 2021 (the Referral). In brief outline, the proposed action involves geotechnical works and investigation activities and ancillary activates to enable access (eg, development of tracks and vegetation removal). The geotechnical works and investigation activities are designed to inform the design and assessment of a proposed tailings storage facility (TSF) at South Marionoak, near Rosebery in western Tasmania. The proposed TSF would form part of the MMG Rosebery mine operations and would allow for the management and storage of tailings waste material. It should be noted that the decision that is the subject of the present proceeding concerns preliminary design and assessment works in relation to the TSF and not the actual construction of the TSF, which is the subject of a separate referral. 3 On 6 January 2022, the Delegate decided that the proposed action is not a controlled action provided it is undertaken in the manner set out in the Decision. The Decision was made under ss 75 and 77A of the EPBC Act, which are set out later in these reasons. The notification of the Decision set out certain measures that were required to be taken to avoid significant impacts on listed threatened species and ecological communities These measures specifically related to the following: (a) the Tasmanian Wedge-tailed Eagle; (b) Tasmanian Forests and Woodlands dominated by black gum or Brookers gum ecological community; (c) the Tasmanian Devil; and (d) the Scrambling Ground-fern. 4 Of significance for present purposes is the fact that the Decision did not require any specific measures to be taken to protect the Tasmanian Masked Owl, which is a listed threatened species under the EPBC Act. This was in a context where North Barker Ecosystem Services (NBES), consultants engaged by MMG to undertake a flora and fauna habitat assessment, had recommended that certain measures be adopted in relation to the Tasmanian Masked Owl. The report in which that recommendation was contained was before the Delegate at the time of the Decision. 5 The Delegate provided a statement of reasons for the Decision, dated 7 February 2022 (the Statement of Reasons). 6 By its amended originating application for judicial review dated 29 April 2022, the applicant applies to the Court under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the Decision. The applicant relies on three grounds of review, which may be summarised as follows: (a) In making the Decision, the Delegate: (i) made a decision that was not authorised by the EPBC Act; (ii) failed to take a relevant consideration into account in the exercise of the power; and/or (iii) erred in law, in that she failed to comply with her obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making her decision under s 75 of the EPBC Act (ground 1). (b) Further or alternatively to ground 1, the exercise of power under s 75 of the EPBC Act by the Delegate was so unreasonable that no reasonable person could have so exercised the power in that: (i) there was no basis in the materials before the Delegate upon which she could reasonably conclude that the Tasmanian Masked Owl was not likely to be significantly impacted by the proposed action; (ii) further or alternatively, the Delegate failed to apply the precautionary principle in deciding whether the proposed action was likely to have a significant impact on the Tasmanian Masked Owl, (ground 2). (a) In the alternative to grounds 1 and 2, in making the Decision, the Delegate erred in law in that the Delegate failed to comply with her obligation under s 77A of the EPBC Act to identify: (i) the "component decision"; and (ii) the particular manner in which she believed the action would be taken, (ground 3). 7 Earlier in this proceeding, the applicant applied for an interlocutory injunction. In light of certain undertakings proffered by MMG, I dismissed the application for an interlocutory injunction: Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498. 8 At the hearing of the proceeding, the applicant relied on the following evidence and material: (a) annexures RAB-1, RAB-3, RAB-4 and RAB-5 to the affidavit of Roland Browne, a partner of Fitzgerald and Browne, the solicitors for the applicant, dated 13 April 2022; (b) an affidavit of Mr Browne dated 20 May 2022; (c) a document titled "Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl)", which was approved by the Minister on 13 July 2010 (the Approved Conservation Advice); (d) a document titled "Matters of National Environmental Significance - Significant impact guidelines 1.1 - Environment Protection and Biodiversity Conservation Act 1999", published by the Department of the Environment of the Australian Government in 2013; and (e) a bundle of documents marked "Material relied upon by the Delegate", comprising Court Book pp 608-3056. 9 The Minister relied on an affidavit of Grace Ng, a lawyer employed by the Australian Government Solicitor, the solicitors acting for the Minister, dated 21 June 2022. This affidavit relates to a request made by the applicant for reconsideration of the Decision, and the process of that reconsideration. As at the time of the hearing, a decision on the reconsideration had not yet been made. 10 MMG relied on an affidavit of Jeffrey Lynn, a partner at Ashurst, the solicitors acting for MMG, dated 9 June 2022. The affidavit annexes an article by David Young, Phil Bell and Nick Mooney titled "Home-range, habitat use and diet of the Tasmanian Masked Owl Tyto novaehollandiae castanops" (2020) 37 Australian Field Ornithology 132. This material was admitted subject to a 'limited use' order under s 136 of the Evidence Act 1995 (Cth), that the use of the document is limited to the fact that it contains the statements and opinions that it contains, but not the correctness of those statements and opinions. 11 There was no cross-examination at the hearing. 12 At the hearing, the Minister made submissions to assist the Court consistently with the principles outlined in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. 13 For the reasons that follow, I have concluded that ground 1 is established. In these circumstances, it is unnecessary to consider grounds 2 and 3.