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

Pays/Territoire
Australie
Type de cour
Nationale - cour supérieure
Date
Fév 14, 2008
Source
UNEP, InforMEA
Nom du tribunal
Federal Court of Australia
Siège de la cour
Sydney
Juge
Tamberlin
Finn
Mansfield.
Numéro de référence
[2008] FCAFC 3
Langue
Anglais
Sujet
Ressources minérales, Air et atmosphère, Environnement gén.
Mot clé
Qualité de l'air/pollution de l'air Pollution atmosphérique (sources fixes) Exploitation minière Conservation de l'énergie/production de l'énergie Changement de climat Émissions
Résumé
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’.
Texte intégral
COU-156716.pdf