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Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources.

Country/Territory
Australia
Type of court
National - higher court
Date
Feb 14, 2008
Source
UNEP, InforMEA
Court name
Federal Court of Australia
Seat of court
Sydney
Judge
Tamberlin
Finn
Mansfield.
Reference number
[2008] FCAFC 3
Language
English
Subject
Air & atmosphere, Environment gen., Mineral resources
Keyword
Air quality/air pollution Air pollution (stationary sources) Mining Energy conservation/energy production Climate change Emissions
Abstract
The case was an appeal from a first-instance judgment of the Federal Court which dismissed an application by the Anvil Hill Project Watch Association Inc seeking to challenge a determination by the minister’s delegate that the construction and operation of an open-cut coal mine and colliery at Anvil Hill, New South Wales, was not a ‘controlled action’ within the meaning of the EPBC Act (with the consequence that the project could proceed without further approval under the EPBC Act). Section 75(1) of the EPBC Act requires the minister to decide whether an action referred to the minister is a ‘controlled action’ and, if so, which of the ‘controlling provisions’ in that Act apply to that action. The Anvil Hill Project Watch Association Inc had submitted at first instance and on appeal to the Full Court that it is a precondition to the minister’s exercise of discretion under that section that the proposed action (objectively) has, will have, or is likely to have, a significant impact on a protected matter. In other words, it was alleged that the actual, future or likely existence of such an impact is a jurisdictional fact. The Full Court of the Federal Court held unanimously that a finding by the minister or the minister’s delegate under the EPBC Act as to whether a proposed action has, will have, or is likely to have, a significant impact on a matter protected by that Act is not a finding as to a jurisdictional fact. It considered: "There is even less indication of the existence of a jurisdictional fact in the language of section 75(1) of the [EPBC] Act in the present case. Section 75(1) requires the minister to make a decision. The exercise of this power is not contingent upon a pre-existing, objectively determined fact. The language of the provision does not contemplate that a challenge may be brought against the minister’s decision on the basis of different or additional evidence which may be adduced before a court’. The Full Court went on to note that there would be serious practical difficulties attending the ‘jurisdictional fact thesis’, not least that a challenge could be mounted against the minister’s decision pursuant to section 75(1) immediately after the decision was made, possibly involving substantial delays ‘which would be inconsistent with [the EPBC Act’s] purpose of adopting an efficient and timely environmental assessment and approval process’.
Full text
COU-156716.pdf