On 17 July 2013, the Federal Court of Australia (Court) delivered judgment in Tarkine National Coalition Incorporated v Minister for Sustainability, Water, Population and Communities  FCA 694 (17 July 2013). The judgment overturns a controversial decision (Decision) by the Commonwealth Minister for Sustainability, Water, Population and Communities (Minister) to approve an iron ore mine in Tasmania’s Tarkine region (Tarkine).
On 18 December 2012, the then Minister (the Hon. Tony Burke MP) approved a proposal (Proposal) by Shree Minerals Limited (Shree) to develop and operate an iron ore mine in the Tarkine. The Decision was made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The Tarkine is home to one of the few remaining Tasmanian devil populations not affected by the presently incurable Devil Facial Tumour Disease (Disease), which is predicted to result in the Tasmanian devil becoming extinct within 25-35 years. Apart from Shree’s Proposal, there are reportedly at least 10 other new mines proposed for the Tarkine region, and almost 60 exploration licences have been granted.
The Tarkine National Coalition Incorporated (TNCI) applied to the Court for judicial review of the Decision, in relation to the Proposal’s impacts on Tasmanian devils, which are protected under the EPBC Act as an endangered species. At trial, TNCI relied on four grounds:
- that the Minister had failed to comply with a mandatory requirement that he consider an approved conservation advice (Conservation Advice) regarding the Tasmanian devil;
- that the Minister had imposed invalid conditions;
- that the Decision was inconsistent with the Convention on Biological Diversity (Convention); and
- the decision was so unreasonable that no reasonable decision-maker could have made it.
Ultimately, TNCI only succeeded on ground (a) above. However, the Court’s reasoning on the other grounds clarifies the EPBC Act’s operation.
(a) Failure to consider Conservation Advice
On 12 May 2009, the then Minister (the Hon. Peter Garrett MP) approved a Conservation Advice for the Tasmanian devil, setting out the threats to the species and available means of supporting the species.
Under the EPBC Act, the Minister was required to have regard to the Conservation Advice in making his decision. Here, however, the Minister was not briefed with the Conservation Advice before making his Decision. Moreover, the Minister’s reasons for the Decision only made brief, generic references to him having considered “conservation advices” and “any relevant conservation advice”.
TNCI argued that this merely gave “lip service” to the Minister’s obligation to consider the Conservation Advice, in breach of a legal requirement that the Minister genuinely consider the Conservation Advice.
The Minister and Shree argued that TNCI’s case put form over substance, because the information contained in the Conservation Advice was largely contained in the other material that was put to the Minister. However, that other material did not address the following matters specifically addressed in the Conservation Advice: the Disease’s incurable nature, the risk of the Tasmanian devil’s extinction in the near future, and research priorities relating to the Disease.
The Court considered the Conservation Advice to be a “pivotal element” in the protection of the Tasmanian devil, and that the Minister’s obligation to consider the Conservation Advice “deals with a fundamental aspect of the Minister’s role”. Because the EPBC Act expressly required the Minister to consider the Conservation Advice, the Minister’s failure to do so meant that the Decision was void for jurisdictional error. The Court observed that, as the Minister has now changed to the Hon. Mark Butler MP, it was “by no means certain” that new Minister would reach the same decision if he genuinely considered the Conservation Advice
(b) Invalid conditions
TNCI challenged two conditions imposed on the Proposal by the Minister. The effect of those conditions was that Shree was required to pay $350,000, and an additional $48,000 for each Tasmanian devil death caused by Shree’s mine, for the purpose of funding an “insurance population” of Tasmanian devils outside of Tasmania.
TNCI challenged those conditions on two grounds, both involving an alleged failure by the Minister to correctly identify the matter protected by the EPBC Act.
- First, TNCI emphasised that an “endangered” species under the EPBC Act is one facing a very high risk of extinction in the wild, as opposed to a species classified as “extinct in the wild” which necessarily depends on insurance populations. Thus, TNCI argued that the EPBC Act protected Tasmanian devils “in the wild”, such that it was improper for the Minister to impose conditions aimed at establishing an insurance population, rather than protecting the Tasmanian devils in their natural habitat. The Court did not accept this argument, on the basis that the insurance population could be reintroduced into the wild so as to lessen the threat of extinction.
- Second, TNCI argued, along similar lines, that the Minister had failed to comply with a requirement that any condition imposed be to protect, repair or mitigate damage to protected matter. The Court held that insurance populations could be seen as a valid means of mitigating damage to the Tasmanian devils, even though Tasmanian devils are not yet extinct in their native habitat.
(c) Inconsistency with the Convention
Under the convention, Australia was required to maintain populations in their natural surroundings (“in-situ” measures) as far as possible and appropriate, with “ex-situ” measures (eg insurance populations) to be adopted “predominantly” for the purpose of complementing in-situ measures. TNCI argued, along similar lines to its challenge to the insurance population conditions, that the Minister had breached the Convention, because the Decision sought to use insurance populations as a means of mitigating damage to natural populations.
The Court expressed doubts as to whether the Convention formed part of Australia’s domestic law but, in any event, emphasised that the Decision’s conditions made provision for a number of in-situ measures. The Court held that it was open for the Minister to conclude that those in-situ measures may have been insufficient, such that ex-situ measures were also appropriate.
TNCI argued that the Decision was void for unreasonableness because it would have the effect of increasing the threat of the Disease in one of the few unaffected Tasmanian devil populations.
The Minister denied this, on the basis of Departmental advice that insurance populations were among the most practical means of combating the Disease, and that the Disease’s spread may have been inevitable. The Minister also emphasised that other conditions imposed on the Proposal, such as requirements for the removal of roadkill, were intended to reduce the spread of the Disease. The Court considered this to be “persuasive”, such that it could not be said that the Decision was so unreasonable that no reasonable decision-maker would have made the Decision.
The Court’s decision suggests the obligation on the Minister to consider approved conservation advices, and potentially other similar documents under the EPBC Act, cannot be discharged other than by the Minister specifically considering the document itself. However, because the Conservation Advice here specifically dealt with important matters relating to the Disease that were not otherwise in material before the Minister, there is scope for doubting whether the outcome would have been the same if those missing matters had been contained in the other material before the Minister.
The Court’s reasoning in relation to the validity of the insurance population conditions is also important, because it indicates that impacts on a species protected under the EPBC Act because it faces a risk of extinction “in the wild” can, to a degree, be validly mitigated through establishing non-wild insurance populations. It is highly doubtful, however, that such measures could be used extensively, without being inconsistent with the objectives of the EPBC Act.