Northern Inland Council for the Environment Inc v Minister for the Environment

Federal Court of Australia|2013-12-20|Before: Cowdroy J

BACKGROUND 5 As noted in the Boggabri decision, the EPBC Act ensures that proposals for certain activities and developments are subjected to a rigorous and consultative assessment and approval process. Such proposals are generally those that are likely to have significant impacts on the environment. 6 The application by Aston Coal is such a proposal ('the project'). The Maules Creek Coal Mine would be an open cut coal mine producing an estimated 13 million tonnes per annum of run-of-mine coal. The proposal includes the construction of a coal handling and preparation plant; a rail spur; a rail loop with a loading facility; mine access roads; a water pumping station; and associated water management infrastructure. The mine would be excavated progressively over a 21 year period resulting in the disturbance of 2000 hectares of land, including 1,665 hectares of native vegetation. Excavated areas would be back filled and rehabilitated progressively upon the completion of mining. It is estimated that the project would employ approximately 470 permanent employees at peak production. 7 On 6 July 2010 the project was referred to the Commonwealth Minister for the Environment, Heritage, Water and the Arts (as the Minister was then known) pursuant to s 68 of the EPBC Act. Such section requires in part that 'a person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action'. A 'controlled action' is one which, if taken by a person without the approval of the Minister, would be prohibited pursuant to Part 3 of the EPBC Act: s 67 of the EPBC Act. 8 Relevantly, actions that will have or are likely to have a significant impact on the following categories are prohibited under Part 3 if taken without the approval of the Minister: a. Listed threatened species included in the 'extinct in the wild', 'critically endangered', 'endangered', or 'vulnerable' categories: ss 18(1) to 18(4); f. Listed threatened ecological communities included in the 'critically endangered' or 'endangered' categories: ss 18(5) and 18(6); and g. Listed migratory species: s 20. 9 On 9 August 2010, a delegate of the Minister determined the proposal to be a 'controlled action', as defined in s 67 of the EPBC Act, in view of the likely significant impacts on lists of threatened species and ecological communities and listed migratory species. The project would impact upon: a. 665 hectares of potential habitat for listed endangered and migratory species, being the swift parrot, the regent honeyeater and the greater long-eared bat ('the three endangered species'); and h. 544 hectares of a critically endangered ecological community, namely White Box, Yellow Box, Blakely's Red Gum Grassy Woodland and Derived Native Grassland ('the White Box ECC'). 10 On 13 August 2010, the delegate of the Minister determined, pursuant to ss 87(1)(a) and 87(4) of the EPBC Act, that the project should be assessed by accreditation by the Minister for Planning and Infrastructure ('the NSW Minister') under the now repealed Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) ('the EP&A Act'). The requirements of the Commonwealth for such assessment were attached to a letter dated 17 August 2010 from the Minister's Department to a senior planner of the NSW Department of Planning. The letter stated: I now enclose the Commonwealth's requirements for the assessment. I note that in accordance with s 75F(3) of the EP&A Act you are required to notify the proponent of these requirements. I confirm our agreement that the administrative guidelines in relation to the bilateral agreement will apply to this one-off accredited assessment process. I enclose a copy of the guidelines for your information. 11 The attached requirements of the Commonwealth stated: The controlled action is likely to have a significant impact on the EPBC Act listed critically endangered ecological community White Box-Yellow Box - Blakely's Red Gum Grassy Woodland and Derived Native Grassland (Box-Gum Woodland) and the EPBC Act listed migratory and threatened species, Regent Honeyeater (Anthochaera Phrygia) and Swift Parrot (Lathamus dicolor). Significant impacts are also considered possible for a number of other species protected by the EPBC Act including, but not limited to, those listed in Appendix A. 12 Significantly, included in the list of species in Appendix A is Tylophora linearis. 13 Aston Coal submitted it's Environmental Assessment for submission to the Director-General of Planning and Infrastructure ('the NSW Director-General') in July 2011 as required by s 75H of the EP&A Act. Such assessment was placed on public exhibition for 40 days from 30 August 2011. 14 On 16 August 2011 the NSW Minister requested the NSW Planning Assessment Commission ('PAC') to undertake a review and public hearing of the project pursuant to s 23D(1)(b)(ii) of the EP&A Act. Following public hearings in November 2011, the PAC completed a report in March 2012 and referred the project back to the Department for Planning and Infrastructure to complete its assessment. 15 During August 2012, the NSW Director-General published an Environment Assessment Report which recommended that the project be approved subject to certain conditions. The NSW Director-General again referred the project to the PAC following the publication of such report, this time to determine subject to the NSW Minister's delegation whether the project should be approved for the purposes of the EP&A Act. On 23 October 2012, the PAC approved the project subject to amended conditions under s 75J of the EP&A Act. 16 On 20 December 2012, the Minister was provided with a 'proposed decision brief' by his Department. Included within the proposed decision brief were: a. a recommended decision that the Minister approve the project; i. proposed conditions for the approval of the project; j. letters attaching the Minister's proposed decision to be sent to relevant parties, including the NSW Minister; and k. a recommendation that the Minister extend the date by which he was to make his decision until 31 January 2013 pursuant to s 130(1A) of the EPBC Act. 17 The Department recommended an extension to the decision date in part so that the decision dates for both the Maules Creek and Boggabri projects would be aligned. It was stated that this would allow the cumulative impacts of both projects to continue to be considered together. 18 The Departmental advice in the proposed decision brief explicitly referred to the impact of the project on the three endangered species and on the White Box ECC, as outlined at [9] above. It also noted that a number of other EPBC Act listed flora and fauna species potentially occurring on and adjacent to the project site were assessed for the likelihood of impacts from the project. Significantly, Tylophora linearis was not referred to as part of the flora so assessed. Further, the advice referred to the need to provide offsets to redress the adverse impact of the project on the relevant threatened and migratory species and on the White Box ECC. The offsets proposed by Aston Coal were said to be insufficient, with additional conditions recommended to remedy the shortfall. 19 On 21 December 2012, the Minister indicated his agreement with the recommended decision, the proposed conditions, and extension to the decision date. He also signed the letters attached to the proposed decision brief, which were then forwarded to the addressees, including the NSW Minister. It is convenient to note at this point that the decision date was subsequently extended twice more, first to 7 February 2013 and second to 30 April 2013. The decision date for the Boggabri project was also extended to the same dates. 20 On 30 January 2013, a submission and report prepared by Northwest Ecological Services on behalf of NICE and another community group, the Maules Creek Community Council ('MCCC'), was made available to the Minister (the 'NICE submission'). Such documents raised two matters of significance, namely the claimed presence on the project site of Tylophora linearis and the adequacy of the offsets. Both issues are referred to more fully hereunder. 21 On 9 February 2013 an article was published in the Sydney Morning Herald newspaper entitled 'Burke intended to approve Maules Creek before hoax'. The article referred to the fact that the Minister (then Mr Tony Burke) sent to the NSW Government a confidential letter that raised 'further questions about the minister's [sic] sudden announcement this week to delay a decision on the mine for three months'. The article referred to the fact that the Minister had proposed to approve the 'controversial Maules Creek Coal Mine before Christmas, only weeks before it was the subject of a hoax media release claiming funding for the project from ANZ Bank had been withdrawn'. The article continued: Mr Burke was widely anticipated to announce his decision on the $776 million project on Thursday, but the environment department instead announced it would be deferred until April 30. The department said the delay was because it was seeking "clarification on potential impacts to matters of national environmental significance." However, in a letter to the NSW Planning Minister, Brad Hazzard on December 21, Mr Burke said: "I am proposing to approve this proposal. My proposed decision is attached for your information." 22 On 11 February 2013 a final decision brief was submitted to the Minister recommending that the project be approved subject to revised conditions. The Minister approved the project on the same day. The final decision brief incorporated the voluminous reports, statements and material which were contained in the proposed decision brief, and referred to a meeting held on 22 January 2013 with representatives of Aston Coal and of correspondence received from Aston Coal. Reference was also made to a teleconference conducted on 21 January 2013 between the Minister's department and representatives of both NICE and MCCC in respect of both the community councils' claim that the offsets proposed by Aston Coal were inadequate, and issues of the impact of the project. 23 The Minister also issued a press release on 11 February 2013. Such press release stated that the NSW government had 'leaked' commercially sensitive information concerning the project and that in consequence the Minister had considered it necessary to bring forward the decision even though further work was to be done in relation to the approvals. Relevantly, the Minister said: "In each of these there additional approvals there is more work to be concluded before the project can actually proceed," Mr Burke said. "As the conditions make clear where more work, new plans or further modelling needs to take place, then this must be carried out to my satisfaction. "It has always been my preference to minimise the number of planning and modelling processes which have to continue after a decision has been made because I want companies to be able to determine whether or not a project will go ahead on the basis of the conditions they see in my decision. "Unfortunately the decision of the New South Wales Government to leak commercially sensitive information has caused me to have to bring these decision forward today with the remaining work to be resolved directly between the company and myself. "The development of these further conditions will be conducted without reference to the NSW Government, which is unfortunate but a decision that they have effectively made for themselves." 24 On the following day, the Minister was interviewed by Sabra Lane in an ABC AM radio program. An introduction to the transcript to the interview refers to the Minister's decision to approve 'two coal mine projects near Narrabri' (namely the project and the Maules Creek Colliery Proposal) and a separate coal seam gas development near Gloucester. The transcript relevantly reads: TONY BURKE: I don't think there's ever been a set of three approvals that I've given with so little knowledge as to whether or not the projects will end up going ahead. On this occasion, all three of them, there were significant outstanding issues and in the ordinary course, I would have worked through those before making a decision. What I've done in this case is, for the areas that are not yet resolved, instead of giving a normal approval and say these are the conditions, I've said these further issues need to be worked through to my satisfaction before we know whether the project can actually go ahead. So it's quite… even though it's just being reported as approvals, it's actually quite a different set of conditions to what would normally occur. SABRA LANE: How stringent are these conditions? TONY BURKE: As I say, some of them are on issues that are not resolved. So with Gloucester, the hydrological modelling still has to be done. And if the impact on ground water comes back as unacceptable then the project won't be able to go ahead. SABRA LANE: Why give approval then? It sort of sounds like a Claytons approval kind of thing. TONY BURKE: That's not an unreasonable description of this one. Quite simply, the New South Wales Government had stated to strategically leak parts of where we were up to with bits of it being reported, not all of it being reported, and effectively had a situation where market-sensitive information was starting to drip feed into the market. Pretty irresponsible pathway to choose, and something that no other state government's ever done before. So I took the view that should make the decision on all the conditions that we were certain of and do all of that publicly. And then for the issues that were still yet to be resolved, put rules around them where unless they're resolved to my satisfaction, the project can't go ahead, but to cut New South Wales out of the remainder of the process. … TONY BURKE: I can't have a situation where market-sensitive information gets strategically leaked for political purposes. You need to have a situation where anyone who you're bringing into the advanced detail before things are finalised is able to act in a responsible way. 25 On 20 June 2013, the Minister issued a statement of reasons pursuant to s 13 of the ADJR Act for the decision to approve the project.

Ground 1: Irrelevant consideration 26 NICE submits that the Maules Creek decision involved an improper exercise of power within the meaning of ss 5(1)(e) and 5(2)(a) of the ADJR Act because the Minister took into account an irrelevant consideration, namely the alleged leaking by the NSW government of commercially sensitive information ('the disclosure'). The Minister's consideration of the disclosure is said to have impacted upon the substance of the conditions to the approval in relation to direct offsets for the project. It is submitted that the issues that those direct offset conditions concerned were not yet settled, and indeed were the unresolved issues that the Minister referred to in his press release of 11 February 2013 and in his interview with Ms Lane. NICE submits that should the decision to approve the project not have been brought forward, those issues would, or may, have been resolved and the conditions would be different. 27 This argument is essentially the same as that raised in the proceeding concerning the Boggabri project, and the reasons provided in the Boggabri judgment for dismissing NICE's application apply with equal force to the present submission. Whilst there are differences of fact between the two proceedings, they are minor and immaterial in relation to this argument. 28 The conditions attached to the Maules Creek project concerning direct offsets are exceptionally similar in substance to those attached to the Boggabri project (see [45] in the Boggabri judgment). The relevant conditions, adopting the numbering used for the conditions published with the Minister's decision, are conditions 10, 11 and 12. Such conditions were new conditions from those included in the proposed decision brief. They state: 10. The person taking the action must verify through independent review the quantity and condition class of White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community and the quantity and quality of habitat for the regent honeyeater, swift parrot and greater long-eared bat within all proposed offset areas including those proposed in the Environmental Assessment, as defined at Attachment C of these conditions, and any additional offsets as required at condition 9. Details of all independently verified offset areas must be submitted to the Minister for approval by 30 December 2013. The findings of the independent review must be published on the proponent's website. 11. If the independent review finds that the offset areas do not meet the requirements of conditions 9, 12 a and 12 b, then additional areas must be included in the offset areas until all relevant criteria under these conditions are met. 12. The offset areas must be of an overall equivalent or better quality than the areas being cleared. This means: a. for White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community, offset areas must meet the definition of the ecological community described in the listing advice, and must be of an overall equivalent or better condition class than the areas being cleared, based on the proportion of each condition class represented and other relevant ecological attributes; b. for the threatened species, the quality of the habitat for the species, taking account of its ecological requirements, must be equivalent to or better than the areas being cleared. [Emphasis in original] 29 The reasons for the inclusion of these conditions, as explained by the departmental staff to the Minister in the final decision brief, are as follows: 10. The department considers that, to ensure certainty that the proposed offsets will deliver an overall conservation outcome that improves or maintains the viability of the protected matters impacted by the proposal; independent verification of the condition and extent of the offsets is required. This is discussed further in the brief. If this independent review finds that the proposed offset areas do not meet the requirements, additional offset areas must be secured until the relevant offset conditions are met. The proponent has been consulted and accepts this additional condition. 11. Recommended additional condition - see comment on new condition [10]. 12. Recommended additional condition - see comment on new condition [10]. 30 Similarly to the Boggabri project, the departmental comments show that the inclusion of these conditions was to ensure that the offsets for the project would adequately safeguard the 'protected matters' for the Maules Creek project, namely the regent honeyeater, swift parrot, greater long-eared bat and White-Box EEC. That these conditions may have been different if the Minister had made the decision to approve the project at a later time does not establish error for the reasons provided at [48]-[50] of the Boggabri judgment. 31 Accordingly, the first ground of NICE's application must be dismissed.

Ground 2: Uncertainty of conditions 32 NICE submits that the Maules Creek decision involved an improper exercise of power in that certain conditions attached to the approval fail to convey to Aston Coal with reasonable certainty what it is required to do: ss 5(1)(a) and 5(2)(h) of the ADJR Act. Condition 11 is principally relied on in support of this challenge, however as will become apparent, it must be read together with conditions 9, 10, 12 and 13 (as set out below) for its purpose to be properly understood. 33 The power of the Minister to impose conditions on an approval of a controlled action is very wide. As was explained by Besanko J in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 at [58] with regard to the EPBC Act: The minister may attach a condition to an approval if he or she is satisfied that it is "necessary or convenient" to do so within s 134(1) and (2). The breadth of the power can be seen from the terms of s 134(3) which sets out examples of the types of conditions which may be imposed. Paragraph (e) authorises a condition for the preparation, approval and implementation of a plan for managing the impacts of the approved action. The concept of management is a very wide one and includes matters such as monitoring and testing, reporting, preventative measures and remedial action. One thing seems to me to be clear and that is that the power is broad enough to encompass significant additions or variations to the approved action. Paragraph (f) authorises conditions requiring specified environmental monitoring or testing to be carried out. This power recognises that there are always risks to the environment, particularly with major developments, and that conditions or circumstances change and the operation of an approved action needs to recognise the risks and changing conditions and circumstances and adapt to them. Paragraph (g) authorises conditions which require compliance with a specified industry standard or code of practice. I do not think it exceeds the bounds of matters of which I can take judicial notice to note that industry standards and codes of practice often include requirements expressed in terms of results to be achieved rather than closely defined criteria. Finally, it is to be noted that the list of matters about which conditions may be made in s 134(3) is not exhaustive of the kinds of conditions which may be attached to an approval. 34 As might be expected for a project of its size and environmental impact, numerous conditions were attached to the Maules Creek approval. Relevantly, conditions for the provision of direct offsets were made to ensure that alternative sites were made available to preserve the habitat of the species that would, or would likely, be affected by the construction and operation of the mine. Those conditions ('the offset conditions') provide as follows: 9. The person taking the action must register a legally binding conservation covenant over offset areas of no less than: a. 9,334 ha of an equivalent or better quality of habitat for the regent honeyeater, swift parrot and greater long-eared bat; and b. 5,532 ha of an equivalent or better quality of the White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community. Note: the 5,532 ha of White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community may be included within the 9,334 ha of offset area for the threatened species if it meets the listing criteria for the EPBC-listed critically endangered ecological community as defined in the EPBC listing advice for that community and the requirements of condition 9. 10. The person taking the action must verify through independent review the quantity and condition class of White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community and the quantity and quality of habitat for the regent honeyeater, swift parrot and grater long-eared bat within all proposed offset areas including those proposed in the Environmental Assessment, as defined at Attachment C of these conditions, and any additional offsets as required at condition 9. Details of all independently verified offset areas must be submitted to the Minister for approval by 30 December 2013. The findings of the independent review must be published on the proponent's website. 11. If the independent review finds that the offset areas do not meet the requirements of conditions 9, 12 a and 12 b, then additional areas must be included in the offset areas until all relevant criteria under these conditions are met. 12. The offset area must be of an overall equivalent or better quality than the areas being cleared. This means: a. for White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community, offset areas must meet the definition of the ecological community described in the listing advice, and must be of an overall equivalent or better condition class than the areas being cleared, based on the proportion of each condition class represented and other relevant ecological attributes; b. for the threatened species, the quality of the habitat for the species, taking account of its ecological requirements, must be equivalent to or better than the areas being cleared. 13. The mechanisms for registering a legally binding covenant must provide protection for the offset areas in perpetuity and be registered within 5 years of the date of this approval. [Emphasis in original] 35 For the purposes of this decision, the effect of the offset conditions may be summarised as follows. Condition 9 requires Aston Coal to register a legally binding conservation covenant over offset areas of no less than areas stipulated in the subparagraphs to that condition. Such covenants are regulated by Part 14 of the EPBC Act. Condition 12 prescribes the quality requirements of the offset areas. To ensure that the offset areas of the requisite quantity (condition 9) and quality (condition 12), condition 11 provides that each proposed offset area must be independently reviewed. 36 If the independent review finds that the quantity and quality requirements for the offset areas are not satisfied, condition 11 dictates that additional areas must be included in the offset areas until the quantity and quality requirements are met. Any additional area so included must also be verified by independent review. Finally, condition 10 stipulates that the '[d]etails of all independently verified offset areas must be submitted to the Minister for approval by 30 December 2013'. 37 When read in the context of the whole of the offset conditions, condition 11 obliges Aston Coal to finalise its offset package, submit it to independent review, and remedy any deficiency that the independent reviewer identifies with the proposed offsets to the satisfaction of the independent reviewer before submitting the verified offset package to the Minister for approval by the end of 2013. If Aston Coal is unable to obtain adequate offset areas, it will breach the deadline of 30 December 2013 contained in condition 10, and will in due course breach the obligation of conditions 9 and 13 to register a conservation covenant over offset areas satisfying the quantity and quality requirements within 5 years of the Minister's approval. 38 NICE submits that the offset conditions will not be capable of being fulfilled should Aston Coal be unable to obtain adequate offset areas. NICE further submits that the offset conditions assume that adequate offset areas will be available, given that such conditions are attached to the approval to ensure the protection of matters of national significance. This is said by NICE to be significant in light of the fact that Aston Coal is not required to have its proposed offsets package verified by independent review prior to commencing the approved clearing of the relevant areas of the Leard State Forest. 39 The offset conditions are not rendered uncertain by virtue of failing to identify what Aston Coal should do if adequate offset areas cannot be obtained. In that circumstance, the offset conditions will necessarily be breached as identified in [37] above. This could trigger a number of consequences, including the imposition of penalties as provided for by Division 2 of Part 9 of the EPBC Act. Most relevantly however, the powers of the Minister to vary, add to, or revoke the conditions, or suspend or revoke the entire approval of the project, would also be enlivened: ss 143, 144 and 145 of the EPBC Act. 40 It is correct, as NICE submits, that the offset conditions need not be satisfied prior to commencing the approved clearing. This would undoubtedly be undesirable from the perspective of environmental protection and preservation if the approved clearance of the Leard State Forest were revoked by the Minister due to a breach of an offset condition. This does not however render the offset conditions, nor the process for establishing adequate offset areas, uncertain. 41 In view of the objects of the EPBC Act, NICE's complaint is more properly a criticism of the manner in which the Minister exercised his power to make conditions under s 134 of the EPBC Act in that the making of the decision was not authorised by the enactment in pursuance of which it was purported to be made: s 5(1)(d) of the ADJR Act. This is merely an observation since NICE did not frame its application in this way, and the Court has not had the benefit of any argument on such question. 42 It follows that this ground of NICE's application must be rejected.

Ground 3: Failure to consider impact on Tylophora linearis 43 NICE submits that the Minister failed to take into account a relevant consideration, namely the impact of project on the Tylophora linearis species. 44 It was accepted by the respondents that the impact on Tylophora linearis was a consideration that the Minister was required to take into account in approving the project. This is the result of the complex interaction of a number of parts of the EPBC Act, explained as follows. Section 136(1)(a) of the EPBC Act required the Minister to take into account 'matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action'. As provided for by s 67, a controlling provision is a provision in Part 3 of the EPBC Act that would prohibit a controlled action (being in this case the project) unless approved by the Minister. One controlling provision identified by the Minister was s 18, referred to above at [8]. The 'matter protected' by s 18(3) is the 'listed threatened species in the endangered category': s 34, item 5 of the EPBC Act. Since Tylophora linearis is a listed threatened species in the endangered category, the Minister was obliged to consider matters relevant to it. 45 In considering the matters relevant to Tylophora linearis, the Minister was also required to take into account factors prescribed by s 136(2). The relevant factor to this decision is contained at s 136(2)(e), namely 'any other information the Minister has on the relevant impacts of the action…'. At the time of making his decision, the Minister had two sources of relevant information on the potential impact of the project on Tylophora linearis: the Departmental advice contained within the final decision brief; and the NICE submission referred to at [20] above. 46 The reference to Tylophora linearis in the Departmental advice is contained within the following extract: 15. Recently, surveys have been undertaken by third party ecologists (understood to be commissioned by local community groups) on both the impact site and some of the offset sties and there are claim that extent and condition of the habitat to offset the matters of national environmental significance, including the extent and condition of the Box Gum Woodland, are over-stated. Additionally, there are claims that an EPBC-listed plant, Tylophora linearis has been recorded on the impact site but not addressed in the Environmental Assessment. These matters have been raised by the community groups in the reports and meetings referred to above, and there has been recent media in relation to these claims. Upon further consideration of this information and relevant assessment documentation, and discussions with the proponent, the department recommends these matters be addressed as follows. 16. Given the uncertainties, raised in the final stages of the assessment and approval process, the department is of the view that to be certain that approval of the Maules Creek Coal Mine will deliver an overall conservation outcome that measurably improves or maintains the viability of matters of national environmental significance, and to ensure both regulatory and stakeholder confidence in this outcome, independent verification of the offsets should be undertaken. 17. As such, the department recommends amendments to a number of conditions that require independent review of the proposed offsets to verify that the extent and condition of the offsets will deliver an overall conservation outcome, consistent with the EPBC Act Environmental Offsets Policy. In additional, several conditions are recommended to be reworded slightly, to provide additional clarity and specificity about the protection and improvements that need to be delivered for the relevant protected matters. 18. Additionally, the department recommends a condition to ensure that if any further EPBC-listed species or communities are found on the impact site that the proponent must undertake targeted surveys and avoid, mitigate and/or offset the identified matter accordingly. 47 The reference in [15] of the Departmental advice to surveys 'undertaken by third party ecologists' is a clear reference to the NICE submission. 48 The NICE submission states as follows with regard to Tylophora linearis: 6.12 Tylophora linearis Endangered Plant listed in EPBC Act recently recorded in Leard State Forest The endangered plant Tylophora linearis was not considered in the environment assessment. Six plants and likely more were recorded in the northwest corner of Leard State Forest adjoining Teston south during this survey. The mining consultants did not record the species. The area where T.linearis was found is likely to be mined in the early stage of the Maules Creek proposal, effectively destroying the only suitable habitat currently known in the mature woodland. That suitable habitat will not be replaced in the revegetated offsets for at least 150 years, if ever. Extensive surveys are required to determine the extent of the plant in Leard State Forest. Those surveys need to be done when the plant is growing with leaves visible, which is likely to be November. 49 The submissions continued: There is no proposal to compensate for the loss of Tylophora linearis, compensating will not be achieved in regeneration and rehabilitaotn areas, and will not be achieved by the management of offset remnants. If the plant is not there now, it is not likely to occur. 50 Appendix C to the NICE submission contains details of a field inspection. It relevantly states: On the 15th of January the area of Leard State Forest shown in the map below was searched for Tylophora linearis. Six plants with leaves that enabled positive identification were recorded in a small of approximately 20 m square [sic]. Numerous other stems without leaves were found but were unable to be positively identified. The conditions at the time were very hot 45C and it had been dry for two months. The vegetation community is a White box woodland with scattered Hop Bush shrubs and occasional White Cypress. From past experience with this plant the best time to search for it is in late spring after good rain, it has been found flowering in early November. The plants were twinning to grass, and low shrubs, and themselves. The identification of the plants as checked by Dr Lachlan Copeland, he viewed the attached photos. 51 It is not disputed that the Minister did not refer to Tylophora linearis in his statement of reasons, despite the requirement on the Minister to take into account both the impact of the project on Tylophora linearis and the information relating to Tylophora linearis that was before him at the time of making the decision to approve the project. NICE emphasises the fact that, in contrast to the three endangered species, the Minister did not consider how Tylophora linearis might be impacted by the project or how such impacts would be addressed. NICE also refers to the fact that, in the Minister's reasons, Tylophora linearis was not included in a list of species that were considered unlikely to suffer a significant impact due to the project. 52 The respondents both submit that regardless of the failure to refer to Tylophora linearis in his statement of reasons, the Minister did take the species into account by virtue of the inclusion of condition 32 in the approval. Condition 32 provides: In the event that any additional matters of national environmental significance are recorded within the project area and a significant impact on the matter/s is likely, the department must be notified in writing within 14 days of the matter/s being recorded. In accordance with condition 37, the Minister may request that the person taking the action revise any relevant plans to ensure better protection of the relevant matter/s. [Emphasis in original] 53 The respondents submit that the potential existence of Tylophora linearis in the proposed project site forms part of the 'additional matters of national environmental significance' referred to in condition 32. To make good that submission, the respondents refer to the following circumstances: a. The information from NICE and MCCC regarding Tylophora linearis was before the Minister when he made his decision; b. The Departmental advice in the final decision brief highlighted at [15] (reproduced at [46] above) that Tylophora linearis had been recorded on the proposed project site, or 'impact site', although not addressed in the environmental assessment; c. The Departmental advice recommended at [18] (reproduced at [46] above) an amendment to the conditions attached to the approval 'to ensure that if any further EPBC-listed species or communities are found on the impact site that [Aston Coal] must undertake targeted surveys and avoid, mitigate and/or offset the identified matter accordingly'; and d. The Minister approved the project with the inclusion of condition 32. 54 In response, NICE submits that condition 32 cannot be read as including Tylophora linearis. This submission is predicated upon the claim that the Minister was aware of the alleged presence of Tylophora linearis in the project area prior to its approval. Accordingly it is submitted, Tylophora linearis cannot properly be construed as an 'additional' matter of national environmental significance within the project area. 55 The Court rejects this submission for the following reasons. First, condition 32 must be understood in the context of the whole of the conditions. The only matters of national environmental significance to which the conditions refer are the three endangered species and the White Box EEC. The conditions are consistent with the Minister's statement of reasons that only those species were likely to be impacted by the project. It follows that the phrase 'any additional matters of national environmental significance' used in condition 32 must include any matter of national environmental significance other than the three endangered species and the White Box EEC. This includes Tylophora linearis. 56 Second, consideration must also be given to the process by which the Minister attached condition 32 to the approval. The first reference to the alleged discovery of Tylophora linearis on the project site appears to have been during the discussion between the Minister's department, NICE and MCCC on 21 January 2013. The first written record of the alleged discovery is in the NICE report, which was only made available to the Minister on 30 January 2013. As a result of the discussion and the department's consideration of the NICE report, the Departmental advice in the final decision brief referred to the alleged discovery of Tylophora linearis. The only reasonable inference on the evidence before the Court, especially in light of [18] of the Departmental advice, is that condition 32 was inserted into the final decision brief due to the alleged discovery of Tylophora linearis. 57 The decision of the Full Court of the Federal Court of Australia in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 ('Bat Advocacy') is of direct relevance. In that decision the inclusion of specific conditions to the approval of a controlled action indicated at least in part that the Minister had taken into account certain relevant considerations. Bat Advocacy concerned the decision of the respondent to relocate a colony of grey-headed flying foxes from the Royal Botanic Gardens in Sydney due to the damage the colony was causing to the gardens. As the grey-headed flying fox was a listed threatened species in the vulnerable category, the proposed relocation was a controlled action for the purposes of the EPBC Act. At first instance, the appellant unsuccessfully sought review of the respondent's decision on the primary ground that the respondent had failed to take into account a relevant consideration, namely the impact that the removal of the colony from the gardens would have on grey-headed flying foxes as a species. The application failed. On appeal, and without objection from the respondent, the appellant also sought review of the respondent's decision on the basis that a draft national recovery plan ('the draft plan') relating to grey-headed flying foxes was a relevant consideration that was not taken into account. The crux of the appellant's arguments on these grounds was that the statement of reasons issued by the respondent under s 13 of the ADJR Act: a. listed the reduction of habit among the potential impacts on the grey-headed flying fox, but did not mention that impact again in the reasons; and b. noted that the draft plan was among the documents considered by the respondent, but did not give such document any further consideration. 58 On this basis the appellant contended that the respondent had not engaged in an active intellectual process in relation to the relevant considerations. Critically however, the conditions of the respondent's approval demonstrated that the respondent 'was aware that the dispersal [of the colony] had potential adverse impacts on the grey-headed flying fox species' and such conditions addressed to some extent 'the survival and welfare of the individual animals comprising the colony in the Garden': Bat Advocacy at [53]. 59 Emmett, McKerracher and Foster JJ dismissed the appeal. Relevantly, their Honours stated: [54] … the Appellant says [that] the conditions do not address any impact on the species as a whole. Specifically, the Appellant complains, the conditions do not address the consequences of the loss of the Gardens as critical habitat of the grey-headed flying fox. The conditions do not contemplate permitting the return of grey-headed flying foxes to the Gardens, or the provision of alternative roosting sites in the Sydney region, if studies were to show that the loss of the Gardens as a roosting habitat affected the distribution of the species. Therefore, the Appellant says, the conditions imposed by the Minister do not support any inference that the Minister gave any active intellectual consideration to the impact on the species of the loss of the Gardens as critical habitat. More specifically, the conditions do not, the Appellant says, support an inference that the Minister gave any active intellectual consideration to the content of the Draft Plan. [55] In the Statement of Reasons, the Minister outlined some of the mitigation measures to which the Trust was committed. Further conditions were imposed to ensure that impacts to grey-headed flying foxes as a result of the proposed action would be acceptably minimised. A close analysis of the conditions demonstrates that the Minister gave consideration to the impact of relocation from the Gardens, including the loss of the Gardens as a site of roosting habitat. For example, condition 14 requires the Trust to continue acting in accordance with the conditions of the approval until such time as the successful relocation can be demonstrated in a report from the independent expert panel. [56] The Statement of Reasons was required to set out the Minister's findings on material questions of fact. However, the Minister was not required to pass comment on all of the material to which his attention had been drawn and to which he had had regard. While failure to include a matter in the Statement of Reasons may justify the court drawing an inference, as a matter of fact, that the matter was not taken into account, such a failure is not necessarily conclusive. The Minister did not have to say anything further about the Draft Plan in the Statement of Reasons in order to demonstrate positively that he had considered it. [57] The detailed conditions that were formulated to protect the flying foxes were designed to minimise the impact of any reduction in critical habitat that resulted from the proposed action. The imposition of the onerous standard for success in condition 14 demonstrated the Minister's concern to ensure that any reduction in critical habitat resulting from the loss of the Gardens as a roosting habitat would not impact on the species. Condition 14 demonstrated a concern to ensure that animals relocating from the Gardens would not settle in an area that could not permanently support them, including by reason of a pre-existing colony in the area. Condition 14 also demonstrated that the Minister was fully aware of the potential adverse impacts upon the grey-headed flying fox species and made a concerted effort to minimise those impacts. [Emphasis added] 60 Similarly, in the present application condition 32 was inserted into the final decision brief due to the alleged discovery of Tylophora linearis. 61 In the alternative, NICE submits that condition 32 does not reflect that the Minister engaged in an active intellectual process in considering the possible impact to the Tylophora linearis species, or put another way, that such consideration was, in the words of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292, 'proper, genuine and realistic'. 62 The Court is mindful however that the 'proper, genuine and realistic' test should only be applied with great caution. The use of similar tests, such as that consideration should be given 'in a real and conscientious way' or that consideration be 'adequately addressed', has been said to be 'fraught with the danger of a slide into impermissible merits review': Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400 at [57]. 63 The approach advocated by counsel for NICE drew upon the statement of Gyles J in Weal v Bathurst City Council (2000) 111 LGERA 181, where his Honour said at [80]: Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration. [References removed] 64 The Court does not agree that condition 32 constituted no more than mere advertence to the impact of the project on the Tylophora linearis species. The fact that condition 32 refers to 'additional matters of national environmental significance' rather than Tylophora linearis specifically, and that the condition is framed in futuro, reflects the uncertainty with which the department treated the alleged discovery of Tylophora linearis. First, the departmental advice within the final decision brief categorised the alleged discovery of Tylophora linearis as a 'claim' only. It appears that the NICE submission gave no information concerning the qualifications of the person who identified the alleged Tylophora linearis plants on the site, and the investigations conducted on the site over several years had not identified any presence of the species. Second, the reference to such claim was more widely referred to by departmental staff in their advice to the Minister as an uncertainty that was 'raised in the final stages of the assessment and approval process'. 65 Accordingly the Minister did not fail to take into account a relevant consideration, namely the impact of the project on the Tylophora linearis species.

Grounds 4 & 5: Approved Conservation Advice for Tylophora linearis 66 The final two grounds of NICE's application are both based on the contention that the Minister failed to comply with s 139(2) of the EPBC Act; that is, he was required, but failed, to have regard to the approved conservation advice. NICE argues that this constitutes a failure to either take into account a relevant consideration, or observe procedures that were required to be observed in connection with making the decision. 67 The approved conservation advice was approved on 1 October 2008 pursuant to s 266B of the EPBC Act, which relevantly states: (1) The Minister must ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed. (2) For this purpose, approved conservation advice is a document, approved in writing by the Minister (and as changed from time to time in accordance with subsection (3)), that contains: (a) a statement that sets out: (i) the grounds on which the species or community is eligible to be included in the category in which it is listed; and (ii) the main factors that are the cause of it being so eligible; and (b) either: (i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or (ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community. [Emphasis in original] 68 The advice is a short three page document that includes a description of Tylophora linearis and records it as an endangered species. Further, the advice records: the distribution and habitat of the species; the threats to the species; research priorities; actions to support the recovery of the species; and relevant existing plans or management prescriptions. Of note is the statement that Tylophora linearis is said to overlap with the White Box EEC and the recommendation that all known sites of the species should be protected from disturbances such as fire, grazing, and forestry activities until its conservation status is fully established and recovery actions are better developed. 69 It is accepted by both respondents that the approved conservation advice was not before the Minister at the time of making the decision to approve the project, and the Minister did not have regard to such advice for the purposes of s 139(2) of the EPBC Act. Rather, it is submitted that in the circumstances of this matter, s 139(2) did not oblige the Minister to have regard to the approved conservation advice. 70 Section 139(2) of the EPBC Act states: (2) If: (a) the Minister is considering whether to approve, for the purposes of a subsection of section 18 or section 18A, the taking of an action; and (b) the action has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community; The Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community. 71 The condition established by s 139(2)(a) was satisfied. Section 139(2)(b) gives rise to a threshold question of whether the likelihood of a controlled action having, or being likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community is a jurisdictional fact. If it is, s 139(2)(b) is a matter which may be determined objectively by the Court in the course of judicial review. If it is not, it is a matter for the Minister to determine when deciding whether to approve a controlled action. Such a determination by the Minister must be made in good faith and within the scope and for the purposes of the EPBC Act: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 ('Malaysian Declaration Case') at [59], [109] and [158]-[159]. 72 To succeed on either of its grounds, NICE must first show that s 139(2) is dependent on a jurisdictional fact. Second, and provided that s 139(2) is found to depend upon a jurisdictional fact, the Court must be satisfied that the project will have, or is likely to have, a significant impact on the Tylophora linearis species.

Jurisdictional fact 73 In general terms, a jurisdictional fact is a criterion, satisfaction of which either 'enlivens the power of the decision-maker to exercise a discretion' or 'mandates a particular outcome': Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]. As was noted by Mark Leeming (now Leeming JA), at 64 in Authority to Decide: the Law of Jurisdiction in Australia (Federation Press, 2012), the identification of a jurisdictional fact usually involves two threshold questions. The first is whether something is a precondition to an exercise of power. If so, the second question is whether that precondition is an existence of fact in the real world, or whether it is merely a state of mind of the decision-maker. 74 There is no dispute between the parties, and on a plain reading of the text nor can there be, that s 139(2)(b) is a precondition. The criterion which must be satisfied on the present application is that the Maules Creek project will have, or is likely to have, a significant impact on the Tylophora linearis species. This is discussed below, but should that pre-condition have been satisfied, the Minister was obliged to have regard to the approved conservation advice for Tylophora linearis in deciding to approve the Maules Creek project. The matter of contention as to whether s 139(2) depends upon a jurisdictional fact is the second of the questions posed by Leeming JA; that is, whether it is for the Minister to be satisfied, or the Court to determine, that the precondition exists. 75 That question is one of statutory construction, and is to be resolved by an analysis of the text of the statute, with reference to the context and evident statutory purpose: Malaysian Declaration Case at [109]; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 ('Timbarra') at [37]. In this regard, NICE placed some reliance on the fact that s 139(2)(b) is not conditioned on the Minister's state of mind. In Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54 ('Anvil Hill 166 FCR 54'), Tamberlin, Finn and Mansfield JJ stated at [21] that: Although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as "where 'x' exists", or "when 'x' exists" or "if 'x' exists", then a person is empowered or obliged to act or refrain from action. The "x" in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty. 76 Although a reference to a decision-maker's 'satisfaction' or 'opinion' will, in practically all circumstances, indicate that Parliament did not intend that a jurisdictional fact be created, the absence of such words does not necessarily lead to the converse result. As stated by Basten JA in Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44]: It is well established that the mere fact that a requirement is objectively expressed, rather than by reference to the satisfaction of the officer or tribunal concerned, is not decisive of the construction issue. Indeed, in relation to inferior courts, it has been said that there is a strong presumption against any jurisdictional qualification being interpreted as contingent upon the actual existence of a state of facts, as opposed to the decision-maker's opinion in that regard. [Reference removed] 77 In Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 ('Pilots Association'), Perram J referred with approval to four relevant propositions first propounded by Black CJ in the Federal Court, and adopted per curiam by the High Court on appeal: see Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 ('Mount Isa Mines') at 303 and Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-7. Perram J succinctly summarised those propositions at [147] as follows: [F]irst, whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision-maker or, instead, by the bare existence of the matter itself is a question of statutory construction; secondly, the resolution of that question is assisted by an examination of the nature of the task reposed in the decision-maker - where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that parliament intended that the decision-maker would have power to make its own determination of that matter; thirdly, the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what parliament intended; and, finally, the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand. [Emphasis in original] 78 The Court is mindful that the relevant decision-maker in both Mount Isa Mines and Pilots Association was an administrative body, not a Minister as in the present proceeding. That does not detract from the general application of the first three propositions referred to by Perram J. 79 Those factors suggest that s 139(2) is not dependent on a jurisdictional fact. First, s 139 forms part of Division 1, Part 9 of Chapter 4 of the EPBC Act ('the Approval Division'). Such Division concerns the approval by the Minister of controlled actions (see [7]-[8] above), and includes sections concerning the timing of the Minister's decision (s 130), invitations for public comment at the Minister's discretion (s 131A), requests by the Minister for further information (s 132), the content of a grant of approval (s 133), and the conditions to attach to a grant of approval (s 134). Each of those sections is contained within Subdivision A. Critically, the purpose of the sections contained within Subdivision B, including s 139, is to establish those considerations that the Minister must, may and must not take into account in certain circumstances when considering whether to grant approval for a controlled action. The principal section in that regard is s 136, which is entitled 'General considerations' and is referred to briefly at [44]-[45] above. Section 136(1) states: Mandatory considerations (1) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision: (a) matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action; (b) economic and social matters. 80 Section 136(2) lists a number of subsidiary matters which the Minister must take into account in considering the matters under s 136(1). Section 136(5) is of particular importance as it prohibits the Minister from considering any matters beyond those provided for in the Approval Division 81 As was submitted by the respondents, s 139(2) does not permit the Minister to consider any additional matters to those contained in s 136 in order to determine whether a controlled action has, will have, or is likely to have a significant impact on a listed threatened species so as to require him or her to consider any applicable approved conservation advices. If s 139(2) does depend on a jurisdictional fact, a Court exercising judicial review of the decision would not be so restricted; rather, the Court would consider any admissible evidence: Anvil Hill 166 FCR 54 at [16]; Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2007) 243 ALR 784 at [66]. Such a result would undermine the manifest intent of s 136 and Subdivision B of the Approval Division; that is to limit and direct the considerations to be taken into account in deciding whether to approve a controlled action. 82 Secondly, s 130 makes clear that the timing of the Minister's decision is predominantly a matter for the Minister. Such section states: Basic rule (1) The Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action. (1A) The Minister must make the decision within the relevant period specified in subsection (1B) that relates to the controlled action, or such longer period as the Minister specifies in writing. (1B) The relevant period, in relation to a controlled action, is as follows: (a) if the action is the subject of an assessment report - the period of 30 business days beginning on the first business day after the Minister receives the assessment report; …

(2) An assessment report is a report given to the Minister as described in: (a) subsection 47(4) (about assessments under a bilateral agreement); or (b) subsection 84(3) (about assessments in a manner specified in a declaration); or (c) subsection 87(4) (about assessments by accredited assessment processes). Notice of extension of time (4) If the Minister specifies a longer period for the purposes of subsection (1A), he or she must: (a) give a copy of the specification to the person proposing to take the action; and (b) publish the specification in accordance with the regulations. [Emphasis in original] 83 Accordingly, where a controlled action is the subject of an assessment report under s 87(4) (as was the Maules Creek proposal), the Minister must decide whether or not to approve the action within 30 days. Should the Minister feel that he or she needs more time to consider a project, an unfettered discretion is afforded to the Minister to extend the decision making period under s 130(1A). This astutely balances the objects of the EPBC Act. The brevity of the 30 day period prescribed by s 130(1B)(a) reflects the 'efficient and timely' assessment process which the EPBC Act seeks to establish: s 3(2)(d). On the other hand, one reason why the discretion of the Minister to extend such period is unfettered is presumably to allow the Minister further time to consider potential environmental impacts of a controlled action where necessary. This accords with other objects of the EPBC Act that, stated broadly, concern the protection and conservation of the environment: ss 3(1)(a)-(e). Should the question of whether the Minister is required to consider an approved conservation advice under s 139(2) be contingent upon the Court's subsequent determination of the likelihood of an impact on a threatened species or ecological community, the benefit of an 'efficient and timely' assessment process would be unreasonably diminished. It would also result in substantial inconvenience for not only the applicant for the approved action, but also the government and other businesses that will be connected to the relevant project. 84 The reliance of NICE on the decisions of Timbarra and Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 ('Tarkine') is misplaced. It was held in Timbarra that s 77(3) of the EP&A Act (as it then was) involved a jurisdictional fact. Such section required a species impact statement to accompany a development application where the proposed development was 'likely to significantly affect threatened species, populations or ecological communities, or their habitats…'. 85 NICE referred to the fact that s 77(3) of the EP&A Act was similarly worded to s 139(2) of the EPBC Act. The decision of Spigelman CJ in Timbarra however made clear that s 77(3) being objectively expressed was not the determinative factor that led to the conclusion of jurisdictional fact. His Honour emphasised at [48] that s 77(3) did not in any way involve the exercise of a statutory power by a decision-maker, but rather was directed to the making of development applications by applicants. His Honour continued in this vein at [50] and [52], stating as follows: [50] The making of an application by an applicant is preliminary to, and quite distinct from, the process of "determination" by a consent authority [i.e. the decision-maker]. A factual reference in a statutory formulation relating to the instigation of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself. … [52] One formulation of the relevant distinction is whether the fact referred to is "a fact to be adjudicated upon in the course of the inquiry" as distinct from an "essential preliminary to the decision making process": Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443. 86 In contrast to s 77(3) of the EP&A Act, the factual reference in s 139(2) of the EPBC Act is at the heart of the decision-making process of the Minister. Relevantly, whether there is likely to be a significant impact on Tylophora linearis is to be determined when the Minister is 'considering whether to approve' the taking of the controlled action: s 139(2)(a) of the EPBC Act. This tends against a conclusion of jurisdictional fact. 87 In Tarkine, a project to develop and operate a magnetite and hematite mine in north-west Tasmania was approved by the then Minister pursuant to s 133(1) of the EPBC Act. The decision of the Minister was challenged by way of judicial review by an environmental association, namely the Tarkine National Coalition Incorporated. Such application was upheld by Marshall J, in part on the basis that the Minister failed to have regard to an approved conservation advice for the Tasmanian Devil in breach of s 139(2). The Tasmanian Devil was a threatened species in the endangered category at all relevant times. 88 Despite some suggestion by NICE in the present hearing to the contrary, Marshall J did not consider whether s 139(2) involved a jurisdictional fact. This appears to be because it was accepted by the parties that the relevant controlled action would likely have a significant impact on the Tasmanian Devil, although this was not explicitly stated in his Honour's reasons. The focus of Tarkine was on what was required of the Minister to give genuine consideration to the approved conservation advice, and whether the reasons provided by the Minister in approving the controlled action reflected such genuine consideration. In the course of his reasons, Marshall J emphasised the importance of approved conservation advices under the EPBC Act: see [46], [49], and [51]-[59]. 89 It follows that Tarkine would only be of assistance to NICE if the Court found first, that s 139(2) is dependent on a jurisdictional fact, and second, that the Maules Creek project is at least likely to have a significant impact on Tylophora linearis. For the reasons above, the Court has concluded that s 139(2) does not involve a jurisdictional fact. 90 This is sufficient to dismiss grounds 4 and 5 of NICE's application. Even if the Court had resolved the jurisdictional fact issue in favour of NICE, the Court would not be satisfied that the Maules Creek project is at least likely to have a significant impact on the Tylophora linearis species for the reasons that follow.

Likelihood of a significant impact on Tylophora linearis 91 There was no dispute between the parties as to the meaning of a significant impact; such an impact is one 'that is important, notable or of consequence having regard to its context or intensity': Booth v Bosworth (2001) 114 FCR 39 ('Booth') at [99]. There was also little difference between the parties as to the meaning of 'likely'; both NICE and Aston Coal promoted the expression of 'real or not remote chance or possibility' as distinct from a test of probability: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 346; Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 at [46]. 92 The Court accepts that these expressions are an appropriate interpretation of 'significant' and 'likely' in the context of s 139(2)(b), and in reference to the objects of the EPBC Act. The relatively broad meaning attributed to 'likely' accords with ss 3(1)(a)-(e), which, as noted above, promote the protection and conservation of the environment. Further, the definition of 'significant' properly operates as a limitation on s 139(2) to exclude impacts which are minor or negligible on a listed threatened species: see to similar effect Krajniw v Brisbane City Council (No 2) [2011] FCA 563 ('Krajniw') at [10]. 93 In order to prove that the Maules Creek project would likely have a significant impact on Tylophora linearis, NICE relies on five documents. As noted above at [81], the Court may only consider evidence that is admissible. The first is the NICE submission. As well as criticising the adequacy of the offsets proposed to be provided for impacts of the Maules Creek and Boggabri projects generally, the submission also asserts that the projects raise issues for Tylophora linearis on the proposed mine sites. The summary to the submission states in part: Most recently the EPBC endangered plant Tylophora linearis was recorded in the Maules Creek project area and it is also likely to occur in the Boggabri Coal project area. The dry season is hampering the chance of surveying the forest to determine its occurrence; further surveys are required during suitable seasonal conditions. Its presence raises many considerations not yet contemplated in the environmental assessment process. There must be a thorough independent review of the vegetation mapping and condition assessment of the offset properties, extensive surveys for Tylophora linearis during suitable seasonal conditions, and consideration of the accumulative impacts on the unmined section of the forest proposed for flora and fauna refuge. That work should be done by independent botanists and ecologists with high standing and expertise in the area before a final decision is made in relation to the mine proposals. 94 In the body of the submission, a section entitled 'Tylophora linearis' states: Endangered Plant listed in EPBC Act recently recorded in Leard State Forest The endangered plan Tylophora linearis was not considered in the environment assessment. Six plants and likely more were recorded in the northwest corner of Leard State Forest adjoining Teston south during this survey. The mining consultants did not record the species. The area where T.linearis was found is likely to be mined in the early stage of the Maules Creek proposal, effectively destroying the only suitable habitat currently known in the mature woodland. That suitable habitat will not be replaced in the revegetated offsets for at least 150 years, if ever. Extensive surveys are required to determine the extent of the plant in Leard State Forest. Those surveys need to be done when the plant is growing with leaves visible, which is likely to be November. 95 Geographical references are then provided for the alleged identification of six Tylophora linearis plants. Such identification is stated to have occurred between 5.23 pm and 5.25 pm on 15 January 2013. A photograph purporting to depict Tylophora linearis is also attached beneath a map of the Leard State Forest where the samples were said to have been recorded. 96 The second document upon which NICE relies is a letter from the Minister's Department to the Senior Planner of the New South Wales Department of Planning dated 17 August 2010, confirming that the Maules Creek project was to be assessed under Part 3A of the EP&A Act. An enclosure to the letter referred to likely or possible impacts of the project on protected species, stating as follows: The Commonwealth Minister for Environment Protection, Heritage and the Arts has declared the Maules Creek Coal project (the proposed construction and operation of a [sic] open cut coal mine approximately 18 km north-east of Boggabri in New South Wales), to be a controlled action under section 75 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The controlled action is likely to have a significant impact on the EPBC Act listed critically endangered ecological community White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland (Box-Gum Woodland) and the EPBC Act listed migratory and threatened species, Regent Honeyeater (Anthochaera Phrygia) and Swift Parrot (Lathamus dicolor). Significant impacts are also considered possible for a number of other species protected by the EPBC Act including, but not limited to, those listed in Appendix A. 97 Appendix A listed Tylophora linearis as one of the threatened species of flora. 98 The third document upon which NICE relies is an Environmental Tool Report produced on 13 July 2010, which purports to have been prepared for 'general guidance on matters of national environmental significance and other matters protected by the EPBC Act' in the Leard Conservation Zone north east of Boggabri. The report identifies Tylophora linearis as being endangered, and that the species, or the species habitat, is likely to occur within the Leard Conservation Zone. 99 The fourth document relied upon by NICE is the draft conditions in the draft decision brief which was provided to the Minister. Specifically, the departmental comment on draft condition 30, which became condition 32 in the final conditions, states: New condition to ensure any additional listed threatened species or ecological community (which is a controlling provision for this action) which may be identified, and has not been not previously recorded [sic] on the project site is appropriately considered, and if required, avoided, mitigated or offset. Upon further consideration of relevant documentation, the department considers that there is a small possibility that additional listed species may be identified on the mine site, either prior to or following commencement of construction. Given this risk, consistent with the precautionary principle ad with previous similar conditions of approval for large projects, new condition is recommended. 100 Finally, NICE also relies on the approved conservation advice for Tylophora linearis, a summary of which has been provided above at [68]. 101 At the hearing, Aston Coal sought a direction under s 136 of the Evidence Act 1995 (Cth) ('the Evidence Act') that the use of the NICE submission be limited such that it: a. only be used to prove what material was before the Minister when he was considering whether or not to approve the Maules Creek project, and what conditions to attach to the approval, under ss 133 and 134 of the EPBC Act; and b. not be used to prove the truth of the facts or opinions asserted therein. 102 An identical direction was sought, albeit to a lesser extent, against a further submission made on behalf of NICE and the MCCC entitled 'Submission to the Federal Government: Failings of the Proposed Offsets for the Whitehaven Maules Ck Coal Mine'. As this submission was not the source of further argument between the parties, and because NICE did not appear to rely on it, the Court will not consider it further. 103 The s 136 direction was sought in respect of the NICE submission due in part to certain deficiencies in the information it contained. The submission does not identify the person or persons who undertook the field assessment that is alleged to have led to the discovery of Tylophora linearis on the project site, nor to their qualifications. The plants are said to have been identified by Dr Lachlan Copeland who conducted his assessment by viewing photographs of the plants. The only reference to Dr Copeland's qualifications is that he is a 'botanist familiar with the regions [sic] flora'. 104 These deficiencies present significant difficulties for NICE. Section 76 of the Evidence Act provides that 'evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed'. A relevant exception to this principle is the expert evidence rule as contained within s 79. It allows for the admission of opinion evidence if the person giving the opinion 'has specialised knowledge based on the person's training, study or experience' and their opinion 'is wholly or substantially based on that knowledge'. The application of these rules to the present proceeding is twofold. First, to the extent that the submission asserts any opinion of the unnamed persons who allegedly discovered the Tylophora linearis plants as to the existence of those plants, those opinions are inadmissible under s 76. Secondly, the extremely limited evidence as to Dr Copeland's profession does not satisfy the Court that his training, study or experience is sufficient to bring his opinion that the photographed plants are Tylophora linearis within the expert opinion rule under s 79. 105 Furthermore, to the extent that the NICE submission is relied upon to assert the truth of the opinions referred to above, it is also inadmissible as hearsay evidence under s 59 of the Evidence Act. 106 The reason that a direction under s 136 is required by Aston Coal is because the NICE submission remains admissible for the purpose of showing the material that was before the Minister when he made the decision to approve the Maules Creek project. Without the direction, the opinions in the NICE submission would be admissible either as evidence relevant for a purpose other than opinion evidence under s 77, or as evidence for a non-hearsay purpose under s 60. 107 NICE opposes the issue of a s 136 direction on the ground that it does not seek to prove the truth of any fact about the actual existence of Tylophora linearis as referred to in the NICE submission. Rather, NICE submits that the NICE submission only goes toward, in combination with the other documents, showing that there is a real possibility of a significant impact on Tylophora linearis. The Court gives no weight to this submission for two reasons. First, the oral submissions of NICE strongly suggested that it did seek to prove the truth of the opinions in the NICE submission. Secondly, if NICE did not so seek to prove the truth of the opinion, then it is unclear how the issue of a s 136 direction on the terms sought by Aston Coal would restrict NICE from arguing its case as it wishes to. 108 The issue of a s 136 direction was considered by Greenwood J in Australian Competition and Consumer Commission (ACCC) v Cement Australia Pty Ltd (No 3) (2010) 275 ALR 235. In that case, the applicant sought to tender a voluminous amount of documents. For the purposes of this proceeding, it is only necessary to refer to two categories of documents. The first such category consisted of documents produced by the respondent companies in which various opinions were expressed. The second category consisted of documents produced by third party consultants engaged by the respondent companies. His Honour exercised his discretion under s 136 of the Evidence Act to limit the use of the second category of documents 'to the fact of the expression of the opinion and the communication of it to the recipients' due to the prejudice that would otherwise occasion to the respondents (see [110]), but declined to do so in respect of the first category of documents. His Honour stated at [107]: However, the evidence in question [the first category of documents] (subject to comments below) is not the evidence of external third parties who have expressed opinions in reports or documents which are now sought to be tendered in circumstances where the respondents have had no engagement with that party or have had no opportunity to understand the factors informing the expression of the opinion. Authorities which deal with reports or opinions of that kind are in an entirely different category to this case. One can well imagine that an attempt by a party to rely upon a pre-existing report of a particular expert prepared at an earlier moment in time on a certain basis or for a certain party (such as a bank) outside the frame of reference of the parties to the controversy, might well give rise or simply might give rise to the possibility of unfair prejudice. 109 Although the NICE submission has been in the frame of reference of the parties since before the present application was made, the respondents have not had the opportunity to engage with Dr Copeland nor the unnamed persons who conducted the field assessment. The respondents have also not had an opportunity to understand their opinions in light of a proper explanation as to their relevant training, study or experience. This is solely because NICE did not seek to adduce further admissible evidence to explain these matters, such as by way of affidavit. Even if such affidavits were relied on, read by the Court and admissible, the respondents would need to be allowed to cross-examine the makers of those affidavits. This would presumably include Dr Copeland. 110 The Court is mindful of the warning of Sackville J in Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317, where his Honour stated at [23] that 'considerable care should be exercised before s 136 of the Evidence Act is invoked to limit the use of evidence on the ground that its use might be unfairly prejudicial to a party in a procedural sense'. In the circumstances outlined immediately above however, and where NICE is seeking to assert the existence of a jurisdictional fact, the Court considers that the respondents would suffer unfair prejudice if a s 136 direction was not issued in respect of the NICE submission. As such, the Court will do so in the form proposed by Aston Coal in [101] above. 111 Prima facie, this is fatal to the submission of NICE that it is likely that the Maules Creek project will have a significant impact on Tylophora linearis. This is because the NICE submission contains the only information available before the Court that could suggest that Tylophora linearis actually exists in the Leard State Forest. The remaining documents relied on by NICE, as is discussed further below, do no more than suggest a possibility that Tylophora linearis plants exist or could exist in the project area. In the case of the Environmental Tool Report, the chance is described as 'likely', but such finding is made without any specific justification for it. 112 NICE also submitted that the departmental comment to draft condition 30 to the approval constituted an admission by the Minister's department of the small possibility of Tylophora linearis existing in the project area. This argument is based on the decision of Lustre Hoisery Ltd v York (1935) 54 CLR 134, where it was found by Rich, Dixon, Evatt and McTiernan JJ at 143-144 that where a party acknowledges the existence of a fact, it may be received in evidence as an admission against them regardless of their knowledge of the true facts. There are a number of matters to note in this regard. The first is that even if NICE's argument was accepted by the Court, it would not go toward proving the truth of the asserted fact; namely the possibility that Tylophora linearis exists in the project area. It would only amount to admission that the Minister's department, and probably by extension the Minister, considered the asserted fact to be true. Although it is possible to argue that a jurisdictional fact is the formation of an opinion by a decision-maker (see R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 ('Hetton Bellbird Collieries') at 430), NICE did not frame its submission with respect to s 139(2) of the EPBC Act in this way. Second, regardless of the difficulty in how NICE pleaded its case, consideration must be given to the Minister's department's source of the asserted fact and the circumstances in which the alleged admission was made: Hetton Bellbird Collieries at 143-144. It is apparent that the comment to draft condition 30 was included following the concerns raised in the NICE submission that Tylophora linearis existed on the project site. As referred to above at [64] however, the department regarded those concerns with uncertainty. It is far more likely, especially given that the condition was framed in futuro, that the comment and condition was included for abundant caution by the department, consistent with the precautionary principle which, as Branson J noted in Booth at [98], 'informs much environmental protection and conservation work'. As such, to the extent that the departmental comment constitutes an admission by the Minister, the Court would afford the admission exceptionally little probative value. 113 In any event, even if the s 136 direction were not issued, NICE has not shown that the Maules Creek project would be likely to have a significant impact on Tylophora linearis. This is because the likely significant impact must be on the species of Tylophora linearis; it is not sufficient to show the likelihood of a significant impact on plants of that species in one location or area. That is provided of course that the species does not exist elsewhere. Such circumstance is not the case in the present proceeding. 114 The decision of Booth concerned injuries sustained by, and deaths of, a large number of Spectacled Flying Foxes due to the operation of an electric grid protecting a crop of lychees on a farm. Branson J was required to determine whether the operation of the electric grid constituted a significant impact on the world heritage values of a declared World Heritage property under s 12 of the EPBC Act. The relevance of Booth to the present proceeding is her Honour's consideration of the phrase 'significant impact' and the evidence relied upon by the parties. It is necessary to set out the facts of the case in order to properly understand her Honour's decision. 115 The farm, operated by the respondents, was in close proximity to the Wet Tropics Heritage Area. It was admitted by the respondents that the Wet Tropics Heritage Area was a property included in the World Heritage List, and was therefore a declared World Heritage property by virtue of s 13 of the EPBC Act: at [18]. The applicant claimed that as Spectacled Flying Foxes were resident in, and contributed in part to the biodiversity of, the Wet Tropics World Heritage Area, their injury and death due to the operation of the electric fence constituted a significant impact on such area. This was denied by the respondents: at [19]. 116 Branson J found in favour of the applicant: at [101]-[106]. In doing so however, her Honour had recourse to considerable evidence regarding the impact that the deaths of Spectacled Flying Foxes from the operation of the electric grid had on the overall population of Spectacled Flying Foxes in Australia. For instance, her Honour made an estimation that the number of deaths of Spectacled Flying Foxes due to the operation of the electric grid during the 2000-2001 lychee season was approximately 18,000: at [48]. This estimation was based on evidence regarding the approximate number of deaths of Spectacled Flying Foxes occasioned per night during a lychee season, and the approximate length of a lychee season: see [44]-[48]. Her Honour also considered evidence regarding the birth and lactation period of Spectacled Flying Foxes, and the likely proportion of female Spectacled Flying Foxes that had been killed: see [49]-[50]. Notably, her Honour considered it more likely than not that the total Australian population of Spectacled Flying Foxes did not exceed 100,000 as at November 2000: see [81]. It was in the context of the evidence that permitted her Honour to make these findings that it was held that the operation of the electric grid constituted a significant impact on the world heritage values of a declared World Heritage property. 117 The decision of Krajniw also reflects the importance of considering a species as a whole when determining whether an action constitutes a significant impact on that species. Krajniw concerned the construction of a bike path, which the applicant contended would cause significant harm to a listed threatened species in contravention of s 18 of the EPBC Act. Having referred to the interpretation of 'significant' in Booth, Dowsett J stated at [10]: In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18 A. Moreover, those sections are concerned with impact upon a relevant species. An adverse effect upon an individual member of the species, or even a number of individual members may not be sufficient to engage those sections. The applicant must demonstrate a risk of significant adverse impact upon the species as a whole. [Emphasis added] 118 As has been noted, Booth and Krajniw considered the phrase 'significant impact' in respect of ss 12 and 18 of the EPBC Act respectively. Whilst the present proceeding concerns 'significant impact' as it occurs in s 139(2), the Court sees no reason to depart from the approach adopted by Branson and Dowsett JJ. Certainly, s 139(2) is expressed in very similar terms to s 18. Further, the Court respectfully adopts the reasons of Dowsett J in Krajniw extracted immediately above. 119 NICE sought to distinguish Booth and Krajniw on the basis that the applicants in those cases were seeking injunctive relief under ss 475(2) and 475(5) of the EPBC Act respectively in the absence of any prior assessment process having been undertaken. It was submitted that admissible expert evidence would plainly be necessary in such circumstance, but that as there was evidence of the existence of Tylophora linearis on the project site, admissible expert evidence was not necessary in the present proceeding. This submission says nothing of the issue of considering the likelihood of a significant impact on a listed threatened species as a whole. The only evidence before the Court in this regard are references in reports to other areas in which Tylophora linearis may be found, or is likely to be found. This is quite simply insufficient to found a finding that the Maules Creek project will have, or is likely to have, a significant impact on the Tylophora linearis species. That is not to say that evidence of the kind adduced in Booth as explained in [116] above was necessary; the extent of evidence required in proceedings considering significant impacts on species will depend upon the circumstances of each case.

CONCLUSION 120 For the reasons above, the Court rejects each of the grounds of review relied upon by NICE. It follows that application by NICE for judicial review is dismissed. 121 In the course of making submissions in respect of the Boggabri decision, counsel for NICE requested that the Court reserve the question of costs due to issues of public interest. In part due to such request, costs were reserved in that proceeding. In case submissions made in respect of costs in the Boggabri proceeding are relevant to this proceeding, the Court will also reserve the question of costs in this proceeding. I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Environmental Protection and Biodiversity Conservation Act 1999(Cth)ss 3, 18, 20, 67, 68, 130, 133, 134, 136, 139, 143, 144, 145

Administrative Decision (Judicial Review) Act 1977(Cth)

Evidence Act 1995(Cth)ss 59, 60, 76, 77, 79, 136

rs (1987) 14 ALD 291 Krajniw v Brisbane City Council (No 2) [2011] FCA 563 Lustre Hoisery Ltd v York (1935) 54 CLR 134 Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1418 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 Weal v Bathurst City Council (2000) 111 LGERA 181 Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012)

REASONS FOR JUDGMENT 1 On 11 February 2013 two separate decisions were made by the first respondent ('the Minister'), each made pursuant to ss 130 and 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ('the EPBC Act'). The decision the subject of this judgment ('the Maules Creek decision') approved an application by the second respondent ('Aston Coal') to construct and operate a new open cut coal mine and associated infrastructure approximately 18 km north-east of the township of Boggabri in New South Wales. This proposal is known as the Maules Creek Coal Mine Project. The other decision ('the Boggabri decision'), which is the subject of a separate judgment ('the Boggabri judgment'), approved an application by Boggabri Coal Pty Ltd to construct and operate an extension to the existing Boggabri Open Cut Mine located 15 km north east of the township Boggabri in New South Wales. 2 Both decisions are subject to applications for judicial review by the applicant ('NICE') pursuant to s 5(1) of the Administrative Decision (Judicial Review) Act 1977 (Cth) ('the ADJR Act') and s 39B of the Judiciary Act 1903 (Cth). Those applications were heard concurrently by the Court. The Boggabri judgment may be found at Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1418. 3 NICE claims to be a person 'aggrieved' by the Maules Creek decision within the meaning of s 5(1) of the ADJR Act due to its incorporation in Australia, its involvement in activities in Australia for the protection and conservation of the environment, and its objects including the protection of the environment. Neither the Minister nor Aston Coal challenge NICE's standing to bring the application. 4 NICE originally sought review of the Maules Creek decision on seven grounds. The seventh ground did not identify a specific ground of review. It was not addressed by any party in either written or oral submissions. Further, NICE gave notice prior to the hearing that another ground of review would not be pressed. Five grounds of review remain for the Court to determine, being: a. The Minister took into account an irrelevant consideration, being the alleged leaking by the New South Wales Government of commercially sensitive information: ss 5(1)(e) and 5(2)(a) of the ADJR Act. b. The Minister exercised his power to attach conditions to the approval of the Maules Creek mine in such a way that some conditions were uncertain: ss 5(1)(e) and 5(2)(h) of the ADJR Act. c. The Minister failed to take into account a relevant consideration, being the impact of the Maules Creek project on a species of plant, Tylophora linearis: ss 5(1)(e) and 5(2)(b) of the ADJR Act. d. The Minister failed to take into account a relevant consideration, being the approved conservation advice (the 'approved conservation advice') for Tylophora linearis as required by s 139(2) of the EPBC Act: ss 5(1)(e) and 5(2)(b) of the ADJR Act. e. The Maules Creek decision involved either an error of law, or a failure to observe procedures that were required to be observed in connection with making the decision, as the Minister failed to have regard to the approved conservation advice for Tylophora linearis: ss 5(1)(f) and 5(1)(b) of the ADJR Act.

(2008) 163 LGERA 400

(2012) 187 LGERA 161

(2000) 111 LGERA 181

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