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Waratah Coal Inc v Minister for the Environment Heritage and the Arts.

Type of court
National - higher court
Dec 10, 2008
Court name
Federal Court of Australia
Seat of court
Reference number
[2008] FCA 1870
Mineral resources, Legal questions, Sea, Environment gen., Land & soil
Legal proceedings/administrative proceedings Environmental planning Mining Coastal zone management Wetlands Protection of habitats
This case involves judicial review proceedings in the Federal Court of Australia undertaken in 2008 by Waratah Coal Inc against a refusal of a $5.3 billion coal mine, railway and port by the Federal Environment Minister. The proposal was referred on 31 July 2008 to the Minister, under the Environment Protection and Biodiversity Conservation Act 1999. The project involved establishing a major new coal mine, railway and port to export coal for electricity production. The coal was to be sourced from Waratah Coal’s mining tenements near the town of Alpha in the Galilee Basin, Central Queensland. The proposal involved the construction of a major new coal export port in the Shoalwater and Corio Bay Ramsar wetlands, an undeveloped part of the Queensland coastline though part of a military training area. The area was listed as a wetland of international significance under the Ramsar Convention. The Minister rejected the proposal on 15 September 2008 under s 74B of the EPBC Act, as it would have clearly unacceptable impacts on the internationally recognised Shoalwater and Corio Bay Ramsar wetlands and the high wilderness value of Shoalwater which is acknowledged in its Commonwealth Heritage listing. Waratah Coal applied for judicial review of the Minister's decision, arguing that the decision was invalid because it was outside of the time limit imposed by the EPBC Act. The application for review included a number of grounds, each of which was based on the allegation that because the 'clearly unacceptable' decision was made more than 20 days after the referral was received it was invalid, and the minister must instead make a decision pursuant to section 75 of the EPBC Act that the action is a 'controlled action'. The court rejected the applicant's arguments and dismissed the application with costs. The Judge ruled:"Notwithstanding the detailed submissions of the applicant, a plain reading of the EPBC Act demonstrates clearly that failure of the Minister to comply with a time limit prescribed by the EPBC Act does not affect the validity of a decision under the Act made outside a set time limit, including decisions made under s 74B. No contortion of the legislation or speculation as to the manner in which s 74B is to be construed in the broader context of Ch 4 Pt 7 detracts from the natural and ordinary meaning of the words in s 156(3) and s 518(1) EPBC Act [which provide that failure to comply with a time limit set in the Act does not affect the validity of a decision]".
Full text



Environment Protection and Biodiversity Conservation Act 1999.

Legislation | Australia | 1999 (2016)

Keyword: Basic legislation, Institution, Ecosystem preservation, Environmental planning, Authorization/permit, EIA, Wetlands, Pollution control, Inspection, Offences/penalties, Marine pollution, Marine fisheries, Protection of species, Policy/planning, Protected area, Soil pollution/quality, Hazardous waste, Freshwater quality/freshwater pollution, Sustainable development, Biodiversity, Migratory species, Alien species, Endangered species, Marine mammals, Biosphere reserves, National parks, Marine protected areas, International agreement-implementation, Access and benefit sharing