Reasoning
117 The provisions in the EPBC Act relating to declared Ramsar wetlands are supported by s 51(xxix) of the Constitution, which empowers the Parliament to make laws with respect to 'External affairs'. The drafting of the EPBC Act reflects an appreciation of the need for legislation implementing a treaty to which Australia is a party to give effect to the treaty by means capable of being reasonably considered appropriate and adapted to that end: Richardson v Forestry Commission (1988) 164 CLR 261, at 289, per Mason CJ and Brennan J; at 300, per Wilson J; at 311-312, per Deane J; at 342, per Gaudron J. This can be seen in repeated references in the EPBC Act to the requirement that actions taken by the Commonwealth in relation to declared Ramsar wetlands be consistent with the Ramsar Convention: see, for example, ss 334(2), 335(2).
118 The EPBC Act must be construed against the background of the Ramsar Convention itself. Article 2(1) imposes an obligation upon each Contracting Party to designate suitable wetlands within its territory for inclusion on the List maintained by the Bureau established under Art 8. Each Contracting Party is obliged to designate at least one wetland to be included in the List when signing the Convention or depositing its instrument of ratification (Art 2(4)). Article 2(2) specifies the criteria to be applied in the selection of wetlands for the List. Each Contracting Party has the right to add to the List further wetlands or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List (Art 2(5)). A Contracting Party has obligations to promote the conservation of wetlands in its territory included in the List (Art 3).
119 It will be seen that the Ramsar Convention operates in a different manner from the Convention for the Protection of the World Cultural and Natural Heritage considered in, among other cases, Queensland v Commonwealth (1989) 167 CLR 232. Under the World Heritage Convention, each State Party has the responsibility to identify and delineate properties within its own territory which are part of the cultural or natural heritage. However, a property can be included in the World Heritage List only if the World Heritage Committee considers that the property has outstanding universal value in accordance with certain guidelines. Thus the Committee exercises a 'gateway' function in determining whether a property should be placed on the World Heritage List.
120 By contrast, the role of the Bureau pursuant to Art 8 (2)(b) of the Ramsar Convention is to maintain the List and be informed by the Contracting Parties of any additions or deletions concerning wetlands included in the List in accordance with Art 2(5). The bureau is also required to forward notification of any alterations to the List to all Contracting Parties (Art 8(2)(d)). This limited role is consistent with each Contracting Party's right under Art 2(5) to add further wetlands to the List or, in defined circumstances, to remove wetlands from the List.
121 The definition of 'declared Ramsar wetland' in s 17(1) of the EPBC Act is integral to the prohibition in s 16(1) against action 'that has or will have a significant impact on the ecological character of a declared Ramsar wetland'. The statutory definition closely follows the language of Art 2(1) of the Ramsar Convention and has two components (ignoring the exclusions in s 17(1)(a) and (b)):
(ii) a wetland, or part of a wetland;
(iii) designated by the Commonwealth under Art 2 of the Ramsar Convention for inclusion in the List.
122 The EPBC Act gives 'wetland' the same meaning it has in the Ramsar Convention: s 528. Article 1(1) of the Ramsar Convention defines 'wetlands' broadly so as to include areas of marsh or water, whether natural or artificial, permanent or temporary, with water that is static or flowing. Given that it is a matter for the Commonwealth to 'designate' a wetland, there may be a question as to whether the purported designation of a site is amenable to judicial review on the ground that the site does not in fact satisfy the definition of 'wetlands' in the Ramsar Convention, or whether the evaluation of a particular site is entrusted to the judgment of the Minister on behalf of the Commonwealth: cf Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. However, the question does not need to be addressed in the present case, as the respondents have not suggested that the Windella Ramsar site is not, or was not at the time of the purported designation, a 'wetland' for the purposes of s 17(1) of the EPBC Act. Nonetheless, I note that the definition in Art 1(1) of the Ramsar Convention refers to areas of marsh or water, 'whether natural or artificial, permanent or temporary'. Despite a suggestion to the contrary at one stage in the hearing, it is no objection to the Windella Ramsar site being regarded a 'wetland' for the purposes of s 17(1) that it is inundated from time to time by releases of water from the Copeton Dam or by overflows from the Gingham channel.
123 The second component of s 17(1) of the EPBC Act itself incorporates two concepts. First, the wetland must be 'designated' by the Commonwealth; secondly, the designation must be 'under Article 2 of the Ramsar Convention for inclusion in the List'.
124 The word 'designate' comes from the Latin 'designatus' which means 'marked out'. The dictionary definition of 'designate' includes 'to mark or point out; indicate; show; specify' (Macquarie Dictionary). For a wetland to be 'designated' under s 17(1) of the EPBC Act it is necessary, in my view, for the Commonwealth to provide material which indicates or specifies the subject site. However, the expression, of itself, does not necessarily require the giving of precise geographical co-ordinates for the designated site, or the provision of a map which precisely defines the boundaries of the site in the manner of a survey. In the ordinary usage of the term, it is enough to 'designate' a site that its location is identified and sufficient information is provided to enable the approximate boundaries of the site to be determined.
125 Of course, s 17(1) of the EPBC Act needs to be read as a whole and not simply by reference to its component parts. The respondents' argument was essentially that a wetland cannot be 'designated…under Article 2 of the Ramsar Convention' unless the purported designation complies strictly with the requirements of Art 2(1). The submission appeared to assume that Art 2(1) imposes an obligation on a Contracting Party to describe precisely and delimit the boundaries of the wetland at the time of the purported designation. Non-compliance with this obligation, so it was said, renders the purported designation of a site ineffective to create a 'declared Ramsar wetland' under s 17(1) of the EPBC Act.
126 As Lindgren J has pointed out recently, the
'word "under" admits of degrees of precision and exactness on the one hand, and of looseness and inexactness on the other'.
Energy Resources of Aust Ltd v Commission of Taxation [2003] ATC 4024, at 4031 [37]. Depending on the context, 'under' may mean 'in accordance with', 'pursuant to', by 'virtue of' or 'by'. Indeed, the authorities have interpreted the expression 'decision…under an enactment', in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), to include a decision purportedly made in pursuant of or under the authority of an enactment: Evans v Friemann (1981) 35 ALR 428, at 436, per Fox ACJ; Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367, at 375, per Branson J; cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In the context of a taxation statute, the High Court has held that a reference to disposal of an asset 'under a contract' directs attention to the source of the obligation to transfer the asset: Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520, at 537, per Gleeson CJ, Gaudron, McHugh and Hayne JJ.
127 In my view, s 17(1) of the EPBC Act, read in context, is not intended to incorporate any particular requirement derived from Art 2 of the Ramsar Convention as a precondition for the valid designation of a wetland for inclusion in the List. It must be remembered that Art 2 obliges the Commonwealth, as a Contracting Party, to designate at least one wetland for inclusion in the List and gives it the right to add further wetlands to the List. The Bureau's role is confined, for present purposes, to maintain the List and act on information provided by Contracting Parties. Bearing this in mind, it seems to me that the expression 'under Article 2 of the Ramsar Convention for inclusion in the List', as used in s 17(1), is intended only to identify the source of the Commonwealth's obligation or right to designate a wetland of international significance for inclusion in the List.
128 As I have explained, s 17(1), by the use of the word 'designated', incorporates a requirement that the relevant wetlands be indicated or specified. As I have also explained, it may be that a purported designation under s 17(1) will be ultra vires the Commonwealth unless the site specified objectively satisfies the statutory definition of a 'wetland'. It also may be implicit in s 17(1) that any purported designation must be bona fide for the purpose of complying with the Commonwealth's obligations imposed or exercising the rights conferred by Art 2. But I do not discern from the language of s 17(1) a legislative intent that a purported designation of a wetland will be ineffective to create a 'declared Ramsar wetland' if, at the time of the purported designation, the Commonwealth fails to describe the boundaries of the site precisely or to delimit the boundaries on a map.
129 In this case, the RIS enclosed with Minister's letter of 2 June 1999 to the Bureau, and the accompanying maps, gave the co-ordinates for the approximate centre point of the Windella Ramsar site. The accompanying maps showed the boundaries of the site drawn in accordance with a scale and by reference to nearby water bodies. While the maps did not provide latitude and longitude readings, they displayed AMG co-ordinates on the axes. As Ms McDonald's evidence showed, this information was sufficient for an interested person to ascertain, albeit by the application of some skill, the latitude and longitude co-ordinates for each of the four corners of the site. In my view, this information, together with the other material supplied by the Minister, was sufficient for the Ramsar Windella site to be 'designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List' within the meaning of s 17(1) of the EPBC Act.
130 I appreciate that on this construction of s 17(1) of the EPBC Act, an interested person would not necessarily be able to identify the exact boundaries of the Windella Ramsar site, in the manner of a survey, simply from the information provided by the Minister to the Bureau. Such a person could use that information to obtain the latitude and longitude co-ordinates and, for example by the use of GPS technology, accurately locate the four corners of the site on the ground to within a few metres. No doubt the inability to obtain completely precise information from the designation documentation might create some inconvenience, although there is nothing to suggest that the respondents suffered any difficulty by not being advised of exact boundaries of the Windella Ramsar site.
131 On the other hand, if the respondent's submission is correct, the validity under Australian law of a purported designation of a wetland would depend on whether the Commonwealth fully complied with what might be said to be formal requirements at the time of designation. It would not be sufficient, so it would seem, for the Commonwealth subsequently to correct the defect by supplying additional information to the Bureau. It would follow that a defect in the description of the boundaries of the wetland site provided to the Bureau, or an administrative failure to include a map, would render a wetland of international significance devoid of legal protection. Doubtless the Commonwealth could begin the process afresh, but by then it might be too late.
132 In any event, I do not think that the assumption underlying the respondents' submissions is sound. In my view, Art 2(1) of the Ramsar Convention does not require a Contracting Party to provide a precise description of the boundaries of a wetland and a map delimiting those boundaries as a pre-condition for a valid designation of a wetland under the Convention. Clearly enough a Contracting Party designating a wetland is obliged by the Ramsar Convention to provide the information specified in Art 2(1). But that does not mean that the consequence of a failure to provide the information concerning a wetland is that the designation process is ineffective to attract the rights and duties flowing from the inclusion of the wetland in the List.
133 As McHugh J explained in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 252-256, the correct approach to treaty interpretation, in the light of Art 31 of the Vienna Convention on the Law of Treaties, is to examine the 'ordinary meaning' of the treaty and the 'context…object and purpose of the treaty'. Taking into account the context, object and purpose (at 255)
'is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court were required to construe exclusively domestic legislation'.
It is also necessary to take into account any subsequent agreement between the parties regarding the interpretation of the treaty and any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation: Art 31(3) of the Vienna Convention.
134 Article 2(1) of the Ramsar Convention does not say that the boundaries of the designated wetland must be precisely described or delimited on a map at the time of designation. Nor does Art 2(1) say that a purported designation is ineffective, either to secure placement of the wetland on the List or to subject the Contracting Party to the obligations which flowed from inclusion of the wetland on the List, if the Contracting Party has not adequately described or delimited the boundaries of the site. Moreover, to interpret the Ramsar Convention as having this effect would, in my view, be difficult to reconcile with its object and purpose. The Ramsar Convention, as the recitals indicate, is designed to stem progressive encroachment on wetlands and to prevent the 'irreparable' loss of a resource of great economic, cultural, scientific and recreational value. While there are obvious advantages to ensuring that Contracting Parties define the boundaries of a designated wetland precisely, it would not enhance the object of the Ramsar Convention to withhold the conservation regime because of a failure to provide an adequate description of the boundaries of the designated wetlands.
135 This view of the Ramsar Convention is supported by the practice of the Contracting Parties. It is true, as the respondents pointed out, that successive Conferences have repeatedly urged Contracting Parties to submit complete maps and descriptions of wetlands at the time of designation, or as soon as possible thereafter. But as shown earlier in this judgment, there has never been any suggestion at the Conferences that a failure of the Contracting Party to provide a precise description of the boundaries of a designated wetland will result in the wetland being denied a place on the List or in the Contracting Party being relieved of its obligations under Art 3 of the Ramsar Convention. In short, the practice of the Contracting Parties is consistent with them regarding the obligation to provide precise boundary descriptions as important, but not going to the validity or effectiveness of a designation of a wetland for inclusion in the List.
136 I should make two further points. First, it is not to the point that the maps supplied to the Bureau did not correspond precisely to the map originally prepared by Mr Murphy. While the process that led to the designation of the Windella Ramsar site was less than meticulous in all respects, the question is simply whether the statute was complied with. In my view it was.
137 Secondly, in view of the conclusions I have reached, it is not necessary to consider whether the maps and information supplied to the Bureau by the Minister in June 1999 complied with the requirement in Art 2(1) of the Ramsar Convention that 'the boundaries of each wetland shall be precisely described and also delimited on a map'. However, given the objectives of the Ramsar Convention and the proper approach to the interpretation of treaties, had it been necessary to do so I would have been prepared to find that the material supplied by the Minister did precisely describe the boundaries of the Windella Ramsar site and delimit them on a map. There is no reason why the required description cannot be provided to the Bureau in the form of a map. As I have found ([129] above), the material supplied by the Minister was sufficient for an interested person to ascertain, albeit by the application of some skill, the co-ordinates for each of the four corners of the site. This in my view was adequate to satisfy Art 2(1) of the Ramsar Convention.