The Devil in the Detail: Tarkine National Coalition Inc V Minister for Sustainability, Environment, Water, Population and Communities
Cavanough, Amanda, University of Western Sydney Law Review
In this case, a judge of the Federal Court of Australia declared the decision of the respondent Minister to approve the development and operation of a mine in north west Tasmania invalid on the ground that the Minister had not considered the text of a document known as the Approved Conservation Advice for the Tasmanian Devil ('the ACA') as required by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'). Although the briefing information before the Minister referred to the ACA, this was held not to be sufficient to satisfy s 139(2) of the EPBC Act because it could not be said that genuine consideration had been given to the document. The applicant for judicial review, Tarkine National Coalition ('TNC') raised three other grounds which attacked conditions that the Minister attached to the approval to 'compensate for unavoidable impacts on Tasmanian devils and their habitat'. However, the Court rejected these other grounds, finding the conditions were authorised by s 134 of the Act, were not inconsistent with Australia's international obligations and were otherwise reasonable.
The Tarkine is an area of north-west Tasmania that is of World Heritage significance. It contains large tracts of pristine wilderness and cool temperate rainforest and is noted for its natural beauty, plants and wildlife, including the iconic endangered Tasmanian devil. The Tarkine also has a significant mining history.
An overseas mining company ('Shree Minerals') proposed to develop and operate an iron ore mine near Nelson Bay River in north-west Tasmania. The proposal was controversial. (1) Those supporting it championed employment, industry and investment in the state of Tasmania. Those opposing it were concerned about the threat to the Tasmanian devil from mining, trucking and logging activity, particularly by the threat of that activity in hastening the spread of Devil Facial Tumour Disease. The Court stressed that its role was not to 'resolve that controversy' but to determine the application by TNC for judicial review of the Minister's decision.
A The Interim Injunction
On 21 May 2013, the Court heard an urgent application for an interim injunction pending the hearing and resolution of the case. The Court gave judgment ex tempore on that day, granting the injunction. The parties did not request written reasons for the decision. However, the Court gave some brief reasons on transcript. The Court was satisfied that the application raised serious questions to be tried at least concerning the correct construction of the EPBC Act in the context of the proposed action. The Court also considered that the balance of convenience favoured grant of the injunction and that failure to grant an injunction would frustrate the Court's processes, by allowing work on the mine to begin before the Court dealt with the validity of that action. (2)
B The Substantive Application
In the substantive application, TNC applied under s 5(1) of the Administrative Decisions (Judicial Revieiv) Act 1977 (Cth) ('ADJR Act') and s 39B of the Judiciary Act 1903 (Cth) for review of the Minister's decision under s 133(1) of the EPBC Act to approve the taking of an 'action' by Shree Minerals, namely the development and operation of the mine.
On 18 December 2012, the Minister approved the taking of the proposed action by Shree Minerals to develop and operate the mine. The Minister's approval was subject to several conditions, including the condition that Shree Minerals donate money to a fund for the purpose of assisting with the maintenance of the Tasmanian devil insurance population, being a program to establish a population of healthy devils in captivity to be released into the wild, if necessary, to support the survival of the species. Prior to the Minister's decision, the impacts of the proposed action were assessed by an Environmental Impact Statement ('EIS'). …