Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities

Counsel for the Third Respondent: Mr M Hinton QC, Solicitor-General for South Australia with Mr D O'Leary

Solicitor for the Third Respondent: Crown Solicitor's Office (State of South Australia)

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 39 of 2012

AND: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD (ACN 007 835 761)

JUDGE: BESANKO J DATE OF ORDER: 13 JULY 2012 WHERE MADE: ADELAIDE

1. There be no order as to the costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 39 of 2012

AND: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES

BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD (ACN 007 835 761)

JUDGE: BESANKO J DATE: 13 JULY 2012 PLACE: ADELAIDE

Introduction 1 On 10 October 2011, the applicant, Mr Kevin Buzzacott, brought an application for constitutional writs under s 39B of the Judiciary Act 1903 (Cth) and an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") in relation to a decision made by the Minister for Sustainability, Environment, Water, Population and Communities ("the Minister"). The applicant named the Minister as the respondent to the application. The Minister's decision was made under ss 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("EPBC Act") and was to approve with conditions the expansion of the Olympic Dam copper, uranium, gold and silver mine and processing plant, including all associated infrastructure in South Australia and the Northern Territory. The approval was granted to BHP Billiton Olympic Dam Corporation Pty Ltd ("the company") and that company, as a person interested, was made a party to the proceeding and became the second respondent (ADJR Act, s 12). The State of South Australia also applied to be joined as a party to the proceeding under s 12 of the ADJR Act and I made an order joining the State of South Australia on condition that it would not claim costs against any of the existing parties to the proceeding. 2 On 20 April 2012, I made an order that the application be dismissed: Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 126 ALD 335; [2012] FCA 403. The first respondent (the Minister) and the second respondent (the company) each made an application for their costs of the proceeding to be paid by the applicant. The applicant opposed such orders on the basis, broadly, of the nature of the proceeding and its importance. He submitted that there should be no order as to costs. The parties made their submissions as to the appropriate orders in writing. 3 I have decided that the application for costs by the first and second respondents respectively should be refused and that there should be no order as to costs. These are my reasons for reaching that conclusion. 4 The Court's discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is a wide one. There are a number of cases where the Court has considered whether to depart from the ordinary rule that costs follow the event where the proceeding may be described as public interest litigation. It is convenient to begin with an examination of the principal authorities.

The Authorities 5 In Oshlack v Richmond River Council (1998) 193 CLR 72 ("Oshlack"), Gaudron and Gummow JJ held that a trial judge who decided not to order an unsuccessful party to pay a successful party its costs had not erred in the exercise of his discretion in taking the following matters into account: (1) The fact that proceedings may be characterised as "public interest litigation" may be a factor which contributes to a conclusion of "special circumstances" so as to justify a departure from the ordinary rule that the unsuccessful party pays the successful party's costs. However, of itself it is not sufficient to justify a departure; (2) The fact that the unsuccessful applicant had pursued the litigation in order to ensure compliance with the law and not for the purposes of private gain; (3) The fact that a significant number of members of the public shared the unsuccessful applicant's concerns and in that sense there was a "public interest" in the outcome of the proceeding; and (4) The fact that the basis of the challenge was arguable and had resolved significant issues about an Act of Parliament and its administration. 6 Their Honours referred to the concept of public interest and said (at 84): That is a 'nebulous concept' unless given, as the primary judge did in the present case, further content of a legally normative nature. It also tends, in this litigation, to distract attention from the legal issue which is at stake. 7 A matter may be in the public interest because a substantial section of the public are affected by the subject matter of the litigation. By contrast, a matter may not be in the public interest for the purpose of determining the appropriate order as to costs simply because members of the public are interested in the result. There may be cases where the circumstances are such that public confidence in the rule of law is advanced by the hearing and determination of the important issues by a Court. There may be a significant public interest in the determination of important and difficult questions of law. 8 In Ruddock v Vadarlis & Ors (No 2) (2001) 115 FCR 229 ("Ruddock v Vadarlis (No 2)"), Black CJ and French J reviewed the general principles relating to the award of costs. Their Honours referred to a number of matters including the effect of conferring a discretion on Courts of summary jurisdiction to award costs in criminal proceedings, the awarding of costs by reference to a party's conduct in a proceeding, the award of costs on an appeal and the decision in Oshlack. In the case before them their Honours ordered that there be no order as to costs either of the appeal or the application at first instance. Their Honours said (at 242 [29]): This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may [sic] of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J. 9 In Save the Ridge Inc (Association No AO3329) v Commonwealth and Anor (2006) 230 ALR 411, the Full Court of this Court considered the question of the costs of an appeal in a case involving environmental legislation. 10 It is important to note that different weight may be given to the relevant considerations on an appeal from the weight given to the same considerations in a proceeding at first instance. For example, the clarification of the law and rule of law considerations, may not, depending on the circumstances, have the same weight on an appeal. 11 The Full Court decided that there was insufficient reason to depart from the ordinary rule. In the course of its reasons, the Court made the following observations. First, in the case of an appeal raising a novel question of much general importance and of some difficulty, a Court may decline to order that an unsuccessful party pay the costs of a successful party. At the same time, it was relevant in that case that the appeal raised points "which were, although not unimportant, much more limited in their application" than those raised in Ruddock v Vadarlis (No 2) (at 415 [13]). The fact that a case raised important and difficult questions did not of itself amount to special circumstances. Secondly, the fact that an appellant sought no financial gain from the litigation did not of itself justify a departure from the usual order as to costs. Thirdly, the Court said that the extended standing provisions under the EPBC Act was not a reason to more readily depart from the usual order as to costs. 12 In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts and Others (2008) 165 FCR 211 ("Blue Wedges Inc"), Heerey J, sitting at first instance made no order as to costs in the case of a proceeding involving the EPBC Act. His Honour took into account the following matters: (a) the applicant represented a large number of community and environment groups and had been actively campaigning about the environment of Port Phillip Bay over many years; (b) the condition of Port Phillip Bay was a matter of high public concern and not only for the four million or so Victorians who lived around it; (c) in the case before the trial judge what was in the public interest and what the public were interested in coincided; and (d) the application raised novel questions of general importance as to the approval process under the EPBC Act. 13 In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts and Anor (No 2) (2011) 280 ALR 91, the Full Court was invited to deal with the costs not only of the appeal, but also the costs at first instance. It declined to deal with the costs at first instance. As to the costs of the appeal, the Court said that the fact that some members of the public demonstrated some interest in the issue of the removal of the grey-headed flying foxes ("GHFF") from the Royal Botanic Gardens in Sydney was not sufficient to establish special circumstances. The Court also took into account the fact that the appeal before the Court raised factual matters which had no precedent value to future decisions under the EPBC Act or about the GHFF and the fact that, although arguable, the grounds of appeal could not be said to have strong prospects of success.

The Applicant 14 The applicant fell within the broad standing provisions of the EPBC Act (s 487) and none of the respondents challenged his standing to bring the proceeding. 15 The applicant is an Aboriginal elder of the Arabunna nation in northern South Australia and has undertaken the duties associated with that position for approximately 20 years. In that time he has voiced the concerns of the Aboriginal people of the Arabunna nation regarding issues which affect the environment and Aboriginal cultural recognition, justice and land rights. He has campaigned against uranium mining at Olympic Dam, South Australia, and the exploitation of the Great Artesian Basin on Arabunna land. 16 The applicant has been actively involved in opposing uranium mining and in promoting a nuclear-free Australia. The details of his activities are set out in the affidavit he swore on 15 February 2012. That affidavit also sets out the details of his opposition to the Olympic Dam mine and his efforts to protect Arabunna land and water. In his more recent affidavit sworn on 20 April 2012, the applicant highlights his concerns about the effects of the Olympic Dam expansion on water from the Great Artesian Basin, sacred sites and dreamtime stories of the Arabunna nation. 17 There was a suggestion by the second respondent that the applicant was not a wholly disinterested member of the public. He has an interest in Arabunna land and is an elder of the Arabunna nation. The applicant lives in Mitchell Park, south of Adelaide, and it is not suggested that he has a direct financial interest in the outcome of the proceeding. The first respondent accepted that the applicant had no personal or financial interest in the outcome of the proceeding and I think that that is the correct approach.

The Application 18 The nature of the application and its progress through to final approval are set out in my earlier reasons (paragraphs 12-29). It is a very substantial development which has generated considerable public interest. Four thousand one hundred and ninety-seven submissions were received from the public in response to the Draft Environmental Impact Statement. Of course, there are risks in relying too heavily on no more than the mere number of submissions, but the material before me indicates that a substantial section of the public has a real and genuine interest in whether or not the development proceeds. Although not quite the same point, it is relevant to note that the first respondent accepts, correctly in my view, that Olympic Dam and its expansion is a matter of public interest and debate. 19 Further evidence of the size and significance of the proposed development may be seen from an affidavit filed and served by the company on an application by it for an expedited hearing. The affidavit is sworn by Mr Mark Vogts who is the Vice-President - Projects of the Uranium Customer Sector Group of BHP Billiton Limited. Mr Vogts deposes to the following: 1. The number of employees engaged to carry out what are defined as the Early Works was 253 in February 2012 and was predicted to increase to 483 by June 2012; 2. The company's mining lease at Olympic Dam contains the world's fourth largest identified copper resource and the largest known uranium resource; 3. The proposed expansion has an expected life of at least 40 years and is predicted to provide employment for up to 8,900 people by 2016; 4. Mr Vogts describes the works and, in paragraph 15 of his affidavit, the very substantial infrastructure associated with the development. 5. The economic significance of the development is discussed in the assessment report produced by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities as part of its assessment of the development under the EPBC Act for the Minister. The report is called "Olympic Dam expansion assessment report EPBC 2005/2270 (September 2011)" and contains the following statements: Information on economic matters is in chapter 21 of the draft EIS and in chapter 24 of the supplementary EIS. The draft EIS estimates the Olympic Dam expansion would contribute $45.7 billion to South Australia's Gross State Product (GSP) over 30 years and the creation of 13,100 full-time equivalent jobs in South Australia. The SAAR notes that the existing mine accounts for 2.4% of South Australian GSP, and the proposed expansion would increase average production more than three-fold. The SAAR concludes there would be very significant impacts on the region and the broader South Australian economy, should the project be approved. The draft EIS also acknowledges the project may potentially cause some negative economic impacts through increased house prices and costs of goods and services, and crowding out of existing economic activity including competition for skilled labour. The increase in South Australia's revenue raising capacity may also result in the state's share of GST revenue being decreased. Nevertheless, the project would result in a substantial net economic benefit to South Australia. The Social Management Plan, referred to above, would assist in managing some of the negative economic impacts such as increased house prices. BHPB has also proposed a number of measures to maximise regional benefits including working with state and local government and regional economic development boards, and funding the Olympic Dam Indigenous Participation Program. On balance the proposal would have substantial economic and social benefits. While benefits will mainly flow to South Australia, they will also be significant at a national level. 6. The proposed development required an amendment to the Indenture between the State of South Australia, BHPB Olympic Dam and BHP Billiton Nickel West Pty Ltd and to the Roxby Downs (Indenture Ratification) Act 1982 (SA). 7. The development will proceed in stages. In October 2011, the company sought and obtained approval from the BHP Billiton Limited board for pre-commitment capital of US$1.2 billion for early works and procurement of plant and infrastructure which are part of Stage 1. 20 By any measure, the development is a very substantial development with State-wide ramifications and, it seems, national ramifications.

The Conduct of the Case and the Grounds of Review 21 I made an order for an expedited hearing on the company's application. There was a large amount of documentation and the company's application had a long and complex history. I have no doubt the timetable I set required considerable effort and discrimination by all parties. The matter was ready for hearing and the parties are to be commended for their efforts in that regard. 22 The hearing itself was conducted efficiently and with commendable discrimination. By that I mean that the arguments were carefully formulated and put to the Court. 23 There was a suggestion by the applicant that there was some doubling up by the Minister and the company and that that was relevant to the exercise of the discretion as to costs. It was suggested that the first respondent ought to have restricted himself to questions of power and procedure. I reject that contention. It is true that the written submissions of each of the first and second respondents were lengthy, but there was no unnecessary repetition in oral submissions and there were some differences in the arguments presented. The facts were sufficiently complex to suggest to me that a thorough examination of the facts by the Minister was appropriate. He was in the best position to do that. 24 All of the five main grounds of review were clearly arguable. 25 Three of the grounds raised issues of statutory construction (grounds 1, 3 and 4a). One ground involved a consideration of a decision of a judge of this Court (Blue Wedges Inc v Minister for Environment, Heritage and the Arts (2008) 167 FCR 463) and an important point relating to the EPBC Act (ground 2). 26 Two of the grounds raised reasonably difficult points of statutory construction (grounds 1 and 4a). Ground 1 raised a point of importance about the scope of the power to impose conditions under s 134 of the EPBC Act. It is true that the actual conditions imposed on an approval are likely to vary from case to case. It is also true that I had the benefit of the guidance on the scope of the power to impose conditions provided by the decision in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts and Anor (2009) 165 LGERA 203 (Tracey J); (2009) 178 FCR 385 (Full Court) ("Lawyers for Forests Inc"). However, there was an extensive use of conditions in this case and, as this case clearly illustrates, the power to impose conditions occupies an important place in the scheme of the Act. Furthermore, there was little authority on the scope of the power to impose conditions other than Lawyers for Forests Inc and, in any event, the conditions in that case differed from the conditions in this case in the way identified in my earlier reasons (at [63]).

Conclusions 27 The result in this case is finely balanced. The applicant accepts that the characterisation of this proceeding as public interest litigation is not of itself sufficient to justify an order that there be no order as to costs. The points of law raised in this case do not rise to the level of complexity and novelty as those raised in Ruddock v Vadarlis (No 2) and, perhaps Blue Wedges Inc. However, each case must be determined according to its own facts. I think the points raised by Ground 1 and, to a lesser extent, Ground 4a were of sufficient complexity and importance that, when added to the substantial public interest in the proposed development, the status of the applicant and the manner in which the proceeding was conducted, the proper order in this case is that there be no order as to costs. 28 I will make an order that there be no order as to the costs of the application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.