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Lawyers for Forests Inc. v Minister for the Environment Heritage and the Arts.

Pays/Territoire
Australie
Type de cour
Nationale - cour supérieure
Date
Sep 3, 2009
Source
UNEP, InforMEA
Nom du tribunal
Federal Court of Australia
Siège de la cour
Melbourne
Juge
Sundberg
Dowsett
Jacobson.
Numéro de référence
[2009] FCAFC 114
Langue
Anglais
Sujet
Questions juridiques, Mer, Environnement gén.
Mot clé
Pollution de la mer Gestion des zones côtières Accès-à-la-justice Pollution marine (d'origine tellurique)
Résumé
Gunns Ltd proposes to build and operate a pulp mill at Bell Bay in Tasmania. When the mill is operative, effluent from the production process is to be discharged into Bass Strait some 2.7km offshore. The Commonwealth marine environment begins a further 2.9km offshore. As the effluent may have an adverse effect on the area of Bass Strait that forms part of the Commonwealth marine environment, Gunns was obliged to make a referral to the Minister, the first respondent, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) before undertaking construction of the mill. The Minister determined that the proposed action was a 'controlled action' within the meaning of the Act and required environmental impact assessment under s 87 of the Act. Following the preliminary documentation and submission process which generated many responses the Department produced a report recommending the Minister approve the proposed action. This was supported by a report from the Chief Scientist. The Minister gave his approval, subject to 48 conditions, on 4 October 2007. The conditions included the development and submission of an Environmental Impact Management Plan (EIMP) with the object of ensuring the proposed action caused no adverse impacts. The conditions included a requirement for ongoing testing, monitoring and research into the effluent and its effects. The appellant sought judicial review of the Minister’s decision to approve the project pursuant to the Act. The Judge dismissed the application finding that there was no evidence that the Minister did not have sufficient information to make that decision. The appellant appealed to the Full Court of the Federal Court from that decision. The grounds for the appeal centred around the submission that the Act provides for a certain approval process and decision whereas the conditions provide a further approval process and further assessment process and was thus outside the authorisation of the legislation. The central submission was developed in relation to six grounds of appeal. The appellant contended that the decision approved the taking of the action on a provisional, staged or incremental basis in that it, when considered alongside the conditions, contemplates a further or separate approval for the construction of the mill and the commissioning and operation of the mill. The Court found that this was not a ground for review at first instance and thus the primary judge’s decision could not be impugned for failing to consider an issue not put forward. In addition the Court held that the construction and operation of the mill involves many steps and that requiring an approval for those steps did not involve more than one s 133 approval, rather the single approval was granted subject to conditions. The appellant argued that the conditions attached to the approval were not contemplated by s 134 and thus were an invalid exercise of the Minister’s power. It was argued that the impugned conditions in substance and effect constitute an assessment and/or provide for an approval in respect of the action; that they are for the purpose of predicting the impact of the action on the marine area; and that they constitute an assessment of the action as completion of modelling is essential for achieving an understanding of the impact of the action. For these reasons, the appellant argued that it was not open to the Minister to conclude that the conditions were necessary or convenient for protecting the Commonwealth marine environment from the proposed action or repairing or mitigating any damage. In determining these grounds the Court considered the Minister’s reasons for the decision in some detail. It then determined that the conditions imposed were not imposed so as to enable him to assess or predict the environmental impact of the proposed action. Rather the conditions were imposed in recognition that although there was no evidence significant impacts were likely, management of any residual risk of environmental impacts was necessary. The appellant contended that the condition requiring the preparation of the EIMP fell outside the ambit of s 134 as the Minister is given a broad discretion to approve it and no criteria for approval were prescribed. The Court held that s 134(3) authorises conditions requiring the preparation of a plan for managing the impacts of an action for approval by the minister. That section expressly authorises such a condition.
Texte intégral
COU-156675.pdf