Queensland Conservation Council Inc v Minister for the Environment and Heritage

The application 23 The applicants seek review of the Environment Minister's decision. Their standing to do so is not in dispute. Essentially their case is that the Minister was obliged to have regard not just to the immediate impacts of the dam, but all of the consequences which could be predicted to follow from the dam's operation. One such consequence, recognised by the information provided to the Environment Minister on referral, was cotton farming conducted with irrigation. The use of certain chemicals in connexion with such farming is known. 24 The Environment Minister accepts that if the EPBC Act required him to consider more than the impacts from the construction and operation of the dam by Sudaw then both the decision under s 75 and that under s 87, with respect to the method of assessment, are liable to be set aside. The application identifies as relevant in that regard the ground in ss 5(1)(e) and 5(2)(b), of the Administrative Decisions (Judicial Review) Act 1974 (Cth) namely a failure to take into account a relevant consideration in the exercise of a power. If the applicants' contentions are correct the decision might also be said to have involved an error of law (s 5(1)(f)) because it was based upon an erroneous view of the Act's requirements. 25 The Environment Minister submits that the ordinary and natural meaning of the phrase 'all adverse impacts … the action … is likely to have' in s 75(2) is limited to the impacts that are likely to arise from the construction of the dam and from its operation, including the modification of water flows in the Dawson River. It does not comprehend the impacts of activities undertaken by other persons as a result of their own decisions, such as those to use pesticides on crops grown on land irrigated with water released from the dam. The phrase does not comprehend environmental consequences that arise from decisions to engage in activities that may have adverse impacts upon the environment, when those activities are neither proposed by the development under consideration and its operation nor form an inherent or inextricable part of them. 26 The New Zealand Court of Appeal has cautioned against site-specific limitations being applied to environmental impacts. In Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 4) (1981) 1 NZLR 530 at 534, the Court said: 'Obviously there must be a real and sufficient link between the less direct effects likely to flow from projected works if they are to be regarded as relevant. But it could not be Parliament's intention that in every context a discussion limited to site-specific environmental implications will satisfy an applicant's responsibility to provide a realistic impact report. If that were the case the 'green light' could well be given to some major industrial project which involved insignificant environment implications considered by reference only to the site itself, but manifold and adverse effects when assessed against the further construction of another undertaking which alone could give it industrial meaning and with which it would clearly be inextricably involved.' 27 The Environment Minister submits that this decision does not hold that a proponent of an action is responsible for someone else's action. It was put that the environmental impact report, which was there required by the National Development Act 1979 (NZ), did not deal with the construction of an electricity generator which it was alleged was necessary to the project. The reference to non-site-specific implications being necessary to give a realistic impact report was made in that context. The Environment Minister adopts for the purpose of his argument a construction which would require that the activity be 'inextricably involved' with the proposed activity. 28 Some reliance was also placed by the applicants upon the United States National Environmental Policy Act of 1969 (42 United States Code 4332). It expressly provides that agencies of the Federal Government are required to consider the impact of an overall programme and not just isolated aspects of facilities because it would frustrate the vitality of the Act: see Atchison Topeka & Santa Fe Railway Co v Callaway 382 F Supp 610 (1974) at 620-1. It would not therefore appear to provide much guidance to what the EPBC legislation requires. 29 In Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 Cripps J considered a provision of the Environment Planning and Assessment Act 1979 (NSW) which required the decision-maker to consider an environmental impact statement prior to final decision or approval with respect to an undertaking where it involved 'an activity that is likely to significantly affect the environment'. The activity in question was the logging of timber. His Honour considered it appropriate to 'go beyond the area in which the activity itself is being proposed and look to the whole cumulative and continuing effect of the activity on the environment …' (at 47). 30 Kivi v NSW Forestry Commission was referred to with approval by Sackville J in Tasmania Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541. His Honour was there dealing with the predecessor to the EPBC Act, the Environment Protection (Impact of Proposals) Act 1974 (Cth) (the EPIP Act). The object of that Act was stated to be 'to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and take into account …' (s 5(1)). Davies J in the later case of Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35, considered that the Act and the Administrative Procedures made under it required 'that attention be given to all those activities which the grant of the licence would be likely to generate and the effect which those actions would have upon the environment'. 31 These cases strongly suggest that the question whether there are likely to be significant effects upon the environment requires a wide consideration of the consequences which will follow if a proposed activity proceeds. The question for the Environment Minister under the EPBC Act is to the same effect. In considering whether an action is 'controlled' by a provision of Part 3 the EnvironmentMinister is to determine whether the proposed action is likely to have a 'significant impact' on an area or species. One would think that when the EPBC Act was prepared it would have been known that an enquiry as to any likely significant effects of an action had been regarded by the courts as one requiring a full examination. 32 The Environment Minister submits that the statutory context of the EPIP Act was different and was likely to have had a wider operation. The earlier cases are to be read in this light. The EPIP Act was concerned with proposals by, or on behalf of, the Australian government and governmental authorities (s 5(1)) in granting approvals and the like. The grant of an approval or licence, such as a licence to export timber could trigger an environmental impact assessment into logging. The EPBC Act is concerned with persons undertaking particular activities. (The references to 'persons' in the EPBC Act denote a body corporate or politic as well as a natural person: s 22(1)(a) of the Acts Interpretation Act 1901 (Cth)). 33 A point of difference between the two Tasmanian Conservation Trust cases was in the identification of the 'proposed action' for the purposes of the Act. Davies J considered that the 'proposed action' was that of the Commonwealth. Stephen J had observed in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 545 that the grant of executive consent is incapable of direct environmental detriment but it may be productive of that indirectly, by permitting some development. It would follow that the EPIP Act was intended to seek out for consideration the likely consequences of the relevant governmental approval or other decision. 34 It may be accepted that the EPBC Act focus identifies a different source of the action which might impact on the environment. As the Explanatory Memorandum to that Act points out (at p 9), it was framed in such a way as to overcome Commonwealth legislation dealing with the environment being triggered by approvals made by the government or governmental authorities. In my view, so far as concerns the question of the extent of the enquiry under s 75, little of consequence follows from the shift of focus under the EPBC Act to a person's intended activity. The objects of the two statutes remain the same. In legislation of this kind the requirements of a provision such as s 75 fall to be determined by reference to the purposes and policy of the Act: Environment Agency v Express Car Co (Abertilley) Ltd [1999] 2 AC 22 at 31E and 1H, and there is nothing to suggest that the considerations relevant to the enquiry whether there are effects which are significant and likely to occur will be different. 35 The true focus of the EPBC Act in any event is on the area or species in question. It is concerned with the prospect of damage or some other adverse impact upon them. The Act is not so concerned with persons undertaking particular activities as it is in the consequences of them. The assessments made by the Environment Minister at this point are not as to the extent to which a proponent should be held responsible or whether their proposed action held up. Section 75 directs attention to areas and species and asks the question - what are likely to be the impacts upon them if the proposal proceeds? 36 The Environment Minister submits that a wide approach, one which takes account of the actions of others, would impermissibly extend the liability of persons undertaking activities for offences under the EPBC Act. This contention did not form part of the Environment Minister's reasons but is advanced now in support of the construction of the subsection which he adopted. I understand it to be submitted that if the significant impacts, which form the ultimate enquiry under s 75, extend to those caused by others the same meaning must be attributed to the prohibition provisions. It would follow, in the Environment Minister's submission, that a person may be guilty of an offence for the decisions and actions of others and this could not have been intended. 37 The Environment Minister's submission assumes that a person has undertaken an action without referring the matter to the Minister, which is the very process under consideration. I accept that a person would be at risk of contravening the Act if they determined not to refer an action, save in the clearest possible cases. The legislation no doubt proceeds upon the assumption that persons will properly inform themselves as to the impacts their actions may have upon these aspects of the environment. Importantly, in my view, submissions for the Minister overlook the nature of the process engaged in when there is a referral to the Minister, as there was in the present case. It is one which will provide persons with protection from liability. If the Environment Minister considers that a proposed action will not have a significant impact upon an area or upon a species one might reasonably conclude that a proponent is safe from prosecution if they proceed. If the Environment Minister determines that it is a 'controlled action' assessments will be undertaken which will permit a decision as to whether to approve the action under Part 9. If it is not it will not proceed. If it is approved it is effectively exempt from the prohibitions. Rather than support a view of the enquiry under s 75 as narrow, this suggests a wider enquiry as necessary. 38 There are other indications in the EPBC Act which confirm that the enquiry undertaken by the Environment Minister is not a narrow one. The Environment Minister is to be provided with information and comment from Commonwealth and State Ministers having responsibilities which relate to the proposal. By this means information may be obtained about every effect a proposal might have. Consideration could be given to existing controls or regulations. The assessment to be undertaken of a proposed action may be very wide ranging. None of these indicate a focus narrowed to a direct and not an cumulative effect. The enquiry might extend properly to the 'whole, cumulated and continuing effect' of the activity of which Cripps J spoke in Kivi v New South Wales Forestry Commission. 39 The words used in s 75 and the process to be undertaken also support a wider enquiry than the Environment Minister undertook. In arriving at the ultimate conclusion, that an action is or is not a 'controlled action', one which is likely to have a significant impact on an area or species, the Environment Minister is first to consider 'all adverse impacts' the action is likely to have. This suggests that the widest possible consideration is to be given in the first place, limited only by considerations of the likelihood of it happening. By that means the Environment Minister will exclude from further consideration those possible impacts which lie in the realms of speculation. The Environment Minister would then determine whether they were significant. 'Likely' and 'significant' are sufficiently clear in their meaning. In any event there is no issue about their meaning in the present case. 40 That the Environment Minister's enquiry under s 75 is a wide one, is I consider, consistent with the high public policy apparent in the objects of the Act. No narrow approach should be taken to the interpretation of legislation having objects of this kind: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 515, 528, 537. 41 In my view the Environment Minister did not undertake the full enquiry required by s 75. The ground for review is made out. There will be declarations in terms of the orders sought in pars 1, 2 and 3 of the application. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.