A recent decision of the Full Federal Court of Australia has shed light on the approach to cumulative impact assessments under the Environment Protection and Biodiversity Conservation Act 1999. This case concerned a proposal by Venture Minerals to develop and operate a hematite mine in the Tarkine area of north-western Tasmania. The proposal required approval by the Commonwealth Minister for the Environment under the EPBC Act.

The proposal was assessed by the Board of the Tasmanian Environment Protection Authority under the Environment Management and Pollution Control Act 1994 (Tas) pursuant to a bilateral agreement between the Commonwealth Minister and his Tasmanian counterpart, which was entered into under s45 of the EPBC Act.

Tarkine National Coalition Inc applied to the Federal Court, unsuccessfully, for judicial review of the Minister’s decision to approve the mine. It appealed that judgment to the Full Court of the Federal Court on three grounds which were, in general terms:

• That the primary judge had erred in holding that the EPBC Act did not require the Minister, in deciding whether to give his approval under s133, to consider the “cumulative impacts” of the proposal;
• That the primary judge had erred in not holding that, on the facts of the case, the assessment report from the board for the proposal was not done in accordance with the Pollution Control Act and the EPBC Act; and
• That the Minister did not have power to impose conditions that were for the protection of endangered species and provided for the payment of compensation in the event that Tasmanian devils, wedge-tailed eagles and spotted-tail quolls were killed during mine operations.

Section 136 of the EPBC Act provides a list of considerations the Minister must consider in deciding whether or not to approve the taking of an action, and what conditions to attach to an approval. Section 136(1) provides that the Minister “must consider” “matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action’ and ‘economic and social matters”. Section 136(2) provides that, in considering those matters, the Minister “must take into account” the following:

• (a) the principles of ecologically sustainable development;
• (b) the assessment report (if any) relating to the action …
• (e) any other information the Minister has on the relevant impacts of the action (including information in a report on the impacts of actions taken under a policy, plan or program under which the action is to be taken that was given to the Minister under an agreement under Part 10 (about strategic assessments)).

Section 136(5) provides that, in deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, “the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider”.

The Full Court dismissed the appeal. Kenny and Middleton JJ concurred with Jessup J who delivered the leading judgment. It was held that:

• Section 136 of the EPBC Act does not require the Minister to consider the “cumulative impacts” of the proposal
• The Minister is required to take into account the consequences of the action under consideration (in the present case, the proposal). It is the consequences of the proposal that have to be the subject of the Minister’s attention under s 136(2)(e) of the EPBC Act. The Minister is not obliged to take account of the consequences of any other action, present or anticipated
• Under s 136(2)(e), the question would be whether the Minister was possessed of information that showed that the operations of other existing mines would contribute, or were likely to contribute, to the consequences that the proposal would have, or was likely to have, on the matter protected by each provision which was a controlling provision in relation to the proposal
• The imposition of the conditions to which objection was taken by the Appellant was within the Minister’s power under s 134 of the EPBC Act
• Whether a particular measure was necessary or convenient for repairing or mitigating damage to the Tasmanian devil was a judgment to be made by the Minister, it was not a legal question, but rather, would involve all manner of environmental, biological and policy considerations upon which the court would be incompetent to rule.

Jessup J ruled that:

“… the appellant’s argument in the present case was concerned not so much with what had happened in the past as with other actions, present and future, that might also be expected to have, potentially at least, some consequences of the kind to which the EPBC Act referred. Here the position is, in my view, quite clear. One needs only to express the argument in the language of the statute, as I have done in para 39 above, to see that it was the consequences of the proposal as such — or, at the general level, of the ‘action’ under consideration – that had to be the subject of the Minister’s attention under s 136(2)(e). The Minister was under no obligation to take account of the consequences of any other action, present or anticipated. In this sense I agree with counsel for the appellant that use of the metaphor ‘cumulative impacts’ tended to mask what lay at the heart of the appellant’s contention, namely, that the Minister was obliged to take account of circumstances which were not consequences of the proposal at all, but which presumptively came about by other actions. In my view, that contention should be rejected.”

Jessup J observed that, for an endangered species, consideration of the consequences of some action “would normally proceed from a base line constituted by the existing circumstances of that species, whether they had been brought about by the natural course of events, by previous human actions which had their own “impacts, or a combination of the two”.

The decision is likely to have significant ramifications for the approach to cumulative impact assessments for controlled actions, and will require a careful approach to state-level assessments of cumulative impacts, where proposals are subject to accredited assessments by a state under the EPBC Act.

This article was originally published on the Maddocks website