Judgment Delivery - Transcript of Video

Lansen v Minister for Environment and Heritage [2008] FCA 903

MANSFIELD J
13 JUNE 2008

DARWIN


[Wide view of court room, zooms in on Justice Mansfield sitting at bench]

Justice Mansfield: I have been asked to publish a summary of the reasons for judgment which I propose to publish in a moment and I shall do that.

The applicants are seven native title claim groups with native title claims under the Native Title Act 1993 (Cth) over land in the vicinity of the McArthur River Mine near Borroloola in the Gulf Region of the Northern Territory.

The operator of that mine, the McArthur River Mines (MRM) proposes to alter its operations from an underground mine to an open pit mine. That will require a significant diversion of the McArthur River.

On 4 March 2003, the Minister for the Environment and Heritage found that proposal to be a “controlled action” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Hence it required his approval. The Minister’s concerns particularly related to the impact of the proposal upon migratory bird species by its effect upon the flow and delta of the McArthur River, and upon the endangered species called the freshwater sawfish by affecting its habitats and its capacity to migrate up and down the river.

Before the approval, the potential environmental impacts of the proposal were to be assessed and the results of the assessment reported to the Minister. The assessment process was undertaken through the Northern Territory Minister for the Environment and Heritage in accordance with a Bilateral Agreement between the Commonwealth and the Northern Territory which came into force on 19 March 2003. The assessment process involved the preparation of an environmental impact statement, its exposure to public comments, and MRM’s response to the public comments. The results of that process were conveyed to the Commonwealth Minister by the Northern Territory Minister on 25 February 2006 by an Assessment Report. The Minister then asked for further information from MRM concerning the potential impacts of the proposal on the freshwater sawfish and upon migratory bird species and how those impacts might be better minimised and monitored.

After receiving the response, the Minister decided to approve the proposed action subject to a number of conditions.

The applicants have challenged the validity of that decision on four main grounds:

1. the assessment of the environmental impacts of the proposal should have been made, but was not made, under Part 8 of the EPBC Act rather than under the Bilateral Agreement because the Agreement did not come into operation until after the Minister had decided that the proposal was a “controlled action” under the EPBC Act;

2. the Assessment Report was not a valid assessment report to empower the Minister to make a decision whether or not to approve the proposal because it did not contain sufficient information to enable the Minister to decide whether or not to approve the proposal;

3. the Minister was required to, but did not, take into account the conditions imposed by the Northern Territory on the proposal, relating generally to the mine development but including its environmental impacts; and

4. the Minister was required to, but did not, give effect to the principles of ecologically sustainable development, in particular the precautionary principle, as he was required to do by the EPBC Act, in granting his approval to the proposal.

The Court has concluded that:

1. the assessment process of the proposal under the Bilateral Agreement was the correct one, as that agreement came into operation before the Minister had selected an assessment process under Part 8 of the EPBC Act;

2. the Assessment Report was a valid assessment report because it contained an adequate description of the material in the environmental impact statement, of the public comments, and of MRM’s response to the public comments, even though the Report itself said that its contents were not themselves sufficient to decide that the environmental impacts of the proposal on the freshwater sawfish and migratory bird species would not be, or only marginally be, affected;

3. the Minister had not taken into account the conditions imposed by the Northern Territory upon its approval to the mine redevelopment, but in the circumstances that failure did not make the Minister’s decision invalid because consideration of the Northern Territory conditions could not have made a material difference to the Minister’s decision, including on the conditions he imposed;

4. the Minister had not failed to take into account the precautionary principle in making his decision.

As the contentions of the applicants failed to show that the Minister’s decision is invalid, the Court proposes to dismiss the application. I publish my reasons.

Included in the reasons is an order giving the applicants leave to amend the further amended application in terms of the document entitled Second Further Amended Application for an Order of Review, dated 18 February 2008 and attached to the document entitled Submission on Additional Issues filed by the applicants on that date.

I have made an order that the application be dismissed but I propose to make that subject to any submissions that Mr Glacken wishes to make because I did indicate that if there were issues about the orders I would give the parties an opportunity to consider them. I have not dealt with the question of costs or any other matters. You may wish to deal with them now, you may like a little time to consider them or you may have reached some agreement about other matters including costs.

[Barrister speaks (12 seconds) – inaudible]

Justice Mansfield: Yes, a summary necessarily is an abridgement and not necessarily an utterly accurate report of what’s in the judgment.

[Barrister speaks (10 seconds) – inaudible]

Justice Mansfield: Yes, alright.

Barrister: And as to costs I have discussed with Mr Hansen … [inaudible]

Justice Mansfield: Alright, well I have another matter commencing, an interlocutory matter commencing at 10.15 am and I am sure that can be interrupted or I can list this matter say at 11.15 am if that’s convenient to the parties and I’ll interrupt that hearing just for a few moments. And because I will not be robed can I indicate that probably at 11.15 am there is no need to robe unless it’s more convenient for the counsel here.

Mr Glacken the other order which I have included is an order formally dismissing the application. I can’t see how that should not be now made so I will maintain that order as set out in the orders in the published Reasons.

[Barrister speaks (12 seconds) – inaudible]

Justice Mansfield: Yes, alright, well I’ve published the Reasons.  I’ll make the Orders which I set out in the Reasons.  I’ll adjourn the matter to 11.15 am to consider whether there are any other orders which any other party seeks to make and by then you can probably have an agreed timetable for the exchange of written submissions about costs. Thank you.

I will adjourn the Court until 10.15 am.

[Judge rises and bows]

Court Officer: All stand. This Court is now adjourned.

[Judge turns and walks out of courtroom]