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Planning and Environment Alert: Commonwealth Government wins strategic cattle grazing case - 20 Feb 2013

A recent Federal Court of Australia decision provides an important insight into the information that can be considered by the Minister for Sustainability, Environment, Water, Population and Communities when a referral is made under the Environment Protection and Biodiversity Conservation Act 1999.

In this case [1], the Court dismissed an application by the Victorian Secretary to the Department of Sustainability and Environment against the Minister’s refusal of its proposed strategic cattle grazing trial in Alpine National Park.

Partner Sarah Persijn and solicitor Thomas Buckley outline the proceedings in this case.

Key points

  • Information provided in a referral will not be the only information that the Minister will consider when deciding whether or not a proposed action will have unacceptable impacts on a matter of national environmental significance.
  • Until an action contravenes the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Minister does not have to consider the Biodiversity Convention obligations in making a decision.
  • A person aggrieved by a decision made under section 74B(1) of the EPBC Act has a right to withdraw the referral and request a new referral, or request reconsideration of the referral by the Minister.

Timeline of events

In December 2011, the Victorian Secretary to the Department of Sustainability and Environment made a referral to the Minister under the EPBC Act for its proposal to conduct a research trial in Alpine National Park, which is included in the National Heritage List. The aim of the trial was to determine whether strategic cattle grazing was an effective tool for fuel and bushfire risk management. In the Victorian Secretary’s view, the proposed action was a controlled action under the EPBC Act, and required referral to the Minister as it was likely to have an impact on the national heritage values and listed threatened species and communities in Alpine National Park. Both of these are considered “matters of national environmental significance” under the EPBC Act [2], and taking an action that will or is likely to have a significant impact on these matters without approval is prohibited under the Act.

In January 2012, the Minister decided under section 74B(1) of the EBPC Act that the proposed action would have clearly unacceptable impacts on the national heritage values of Alpine National Park. In making his decision, the Minister considered information and material which was not submitted with the referral. The Victorian Secretary subsequently challenged the Minister’s decision by way of judicial review in the Federal Court.

Issues for consideration

The Victorian Secretary alleged that in making his decision, the Minister had:

  • exceeded his power under the EPBC Act by considering information that was not provided in the referral;
  • exceeded his power under the EBPC Act by relying on matters that were not protected under the EBPC Act;
  • breached the rules of natural justice by failing to give the Victorian Secretary an opportunity to comment on the material which the Minister considered, but which was not included in the referral; and
  • failed to consider whether Division 1A of Part 7 of the EPBC Act should have applied to the referral.

Information included in the referral

A decision under section 74B(1) of the EPBC Act is made “on the basis of the information in the referral”.

When making his decision, the Minister considered reports and material which was not submitted with the referral. However, and importantly, that material that was already within his own Department’s possession and knowledge. It was because of this that the Court dismissed the Victorian Secretary’s claim on this ground.

Justice Kenny noted that nothing in the text of section 74B of the EPBC Act precluded the Minister from using his own knowledge and his Department’s knowledge. His Honour said that the fact that the Minister must make his consideration “on the basis of the information in the referral” does not mean that the Minister must accept that information. If the Minister were not permitted to draw on his own knowledge and the knowledge of his departmental officers, it would be difficult to imagine that there could be any effective scrutiny or assessment of the information in the referral. [3]

This point is important for those making a referral under the EPBC Act, as the information provided in the referral will not be the only information that the Minister will consider when deciding whether or not a proposed action will have unacceptable impacts on a matter of national environmental significance.

Relying on matters not protected under the EPBC Act

The Victorian Secretary also argued that the Minister, in considering the recreational and aesthetic characteristic national heritage values of Alpine National Park, had relied on matters that were not protected under the EPBC Act, and thereby exceeded his power under section 74B(1) of the EPBC Act. The Victorian Secretary contended that the protection of these national heritage values was not appropriate to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention.

In a lengthy discussion on the history of the EPBC Act and the Biodiversity Convention, Justice Kenny rejected this argument. Where the Minister makes a decision under 74B(1) of the EPBC Act, he has to consider whether it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3 of the EPBC Act. The matters protected in Part 3 of the EPBC Act include, among other things, the matters of national environmental significance. [4]

The national heritage values of a national heritage place are a matter of national environmental significance under the EPBC Act. [5] Justice Kenny found that the Minister was only required to consider whether it was clear that the cattle grazing trial would have an unacceptable impact on the matters protected by Part 3 of the EPBC Act, which in this case included the national heritage values of a national heritage place. Until and unless an action is taken in contravention of Part 3 of the EPBC Act, the Minister did not have consider whether prohibiting the cattle grazing trial would be appropriate to give effect to the Biodiversity Convention obligations.

Denial of procedural fairness

At common law, procedural fairness requires that a person likely to be affected by a decision is given an opportunity to comment on adverse information that is credible, relevant and significant to the decision being made. [6] The Victorian Secretary argued that even if the Minister was entitled to consider information that was not submitted in the referral, the Secretary was entitled to an opportunity to comment on that material. The Court rejected this submission.

In the Court’s view, procedural fairness is afforded to anyone aggrieved by a decision under section 74B(1) of the EPBC Act through the rights to withdraw the referral and request a new referral, or request a reconsideration of the referral under section 74C(3) of the EPBC Act. If the Victorian Secretary sought reconsideration of the decision under sections 74C(3) and 74D of the EPBC Act, he would have an opportunity to comment on the material and the Minister would be obliged to give the Secretary an opportunity to address any new material that he had not previously had an opportunity to address.

Failing to consider the applicability of Division 1A of Part 7 of the EPBC Act

The Victorian Secretary also argued that the Minister, in making his decision under section 74B(1) of the EPBC Act, should have also separately considered whether Division 1A of Part 7 of the EPBC Act should have applied. Essentially, the Victorian Secretary alleged that where the Minister considered that it was clear the proposed action would have unacceptable impacts, he then had to separately consider whether Division 1A (decision that action is clearly unacceptable) of Part 7 of the EPBC Act applied. The argument is novel and was rejected by the Court.

Justice Kenny relevantly pointed out that if the Minister considers that it is clear that a proposed action would have unacceptable impacts on a matter of national environmental significance, there is no effective choice that the Minister can make other than to decide that Division 1A of Part 7 of the EPBC Act applies. [7]

The Court ultimately dismissed the Victorian Secretary’s application for judicial review.

For more information on this case or the application of the Environment Protection and Biodiversity Conservation Act 1999, please contact HopgoodGanim’s Planning and Environment team.

 


 

[1] Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1
[2] See sections 15B, 15C, 18 and 18A of the Environment Protection and Biodiversity Conservation Act 1999
[3] Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1 at [59]
[4] See Part 3, Division 1 of the Environment Protection Biodiversity Conservation Act 1999
[5] Sections 15B and 15C of the Environment Protection Biodiversity Conservation Act 1999
[6] See Kioa v West (1985) 159 CLR 440 at 628-629 (Brennan J)
[7] Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1 at [114]

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