Conservationists’ rights in the courtroom

It may be that a normal day in the life of an environmental conservationist is changing. It is easy to imagine now that he or she may wake up in the morning and grab his or her up-to-date, well-leafed copies of the Environment Protection Act (1970) (Vic), Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) (EPBC Act) and Planning and Environment Act 1987 from his or her shelf and, armed with these 1500-odd recycled pages, sit down to scan the morning paper for public project announcements.

By and large, environmental conservation groups are better prepared, better equipped and better represented now than they have ever been. They have a proven track record of taking on large projects in all ground-impacting industries and are getting some real ‘runs on the board’. Part of this success stems from the introduction of statutory powers to bring third party challenges, either as aggrieved persons under judicial review legislation or under the environmental protection legislation.

The long-term results of some of the wins environmental lobbyist have recently chalked up in Queensland and in other states are largely yet to be seen, but some examples of direct implications on business are already upon us.

How challenges have evolved
All project approvals are determined by administrative decisions made by a public servant or government minister under relevant legislation. These approvals may confer full project rights in themselves (such as development approvals), necessarily co-exist with other approvals (such as leases needing environmental authorities) or be a step in progress towards full project rights (such as an EPBC Act decision prior to a state government grant of project rights).

Such decisions are vital for the legitimate commencement and ongoing operation of a project but, over the years, they have been opened up more and more to the prospect of court scrutiny. The recent Alliance to Save Hinchinbrook decision of the Queensland Supreme Court has shown the evolution of conservationists? rights to challenge project approvals.

Those immediately involved in a project ? such as the proponents of the projects and landholders in the area of the project ? have had statutory rights of participation for a long time. Over time, these rights of participating in the statutory process sometimes evolved into rights to appeal against decisions adverse to the stakeholder’s interest, at least for those stakeholders with a primary involvement in the process.

However, all along, these statutory participation rights and review rights sat alongside well-established rights, recognised by all Australian courts, but initially unsupported by legislation – to challenge administrative decisions for breach of natural justice/procedural fairness and on other grounds (such as decision makers taking into account matters which they should not have or, the reverse, failing to take into account something which they should have). These non-statutory review rights have been part of the Australian legal system for a very long time, but could generally only be used to mount a court challenge by someone whose personal or property rights were clearly affected by the administrative decision under challenge. The interests of conservationists was for a long time not recognised by the courts, as coming within the well established scope of parties who had sufficient standing to seek common law judicial review of administrative decisions.

These non-statutory rights gradually came to be supported by judicial review legislation – in 1977 at the Federal level, 1978 in Victoria and in 1991 in Queensland. The legislation was deliberately designed to give a much broader set of people clearer access to the courts, to seek judicial review of a whole range of government decisions that affected them. As the number of these actions increased, so did the courts’

willingness to entertain challenges from progressively wider and wider interests. Public interest groups recognised opportunities to overturn government decisions which were adverse to their interest focus through court challenges. Conservation groups have always been at the forefront of these groups, although their success in convincing courts to at least hear their challenges has not always been a foregone conclusion.

One important feature of these review rights was, and continues to be, that they do not give the courts a right to a ‘merit review’, that is, the courts can only look to see whether or not the decision maker followed the process set by the legislation he or she was operating under, as opposed to weighing up the merits of the project proponent’s case for approval. In those circumstances, the outcome can only be an order to have the administrative decision set aside, rather than the court substituting its own decision in place of the administrative decision. The decision maker still has to work through the entire process again and come to a fresh decision, without making any of the errors that had undermined the first decision. Nevertheless, from a project proponent’s perspective, this leads to (often serious) delay and increased cost.

In more recent years, conservation groups have been given considerable assistance by governments, including the Federal, Victorian and Queensland Governments, through specific amendments to some – but not all – environmental protection legislation. This occurred in such a way that conservation groups were given almost guaranteed access to judicial review, through the combined operation of the environmental protection legislation and the judicial review legislation. 

Two examples of where this special access was given to conservation groups via statute are the EPBC Act at the Federal level and the Nature Conservation Act 1992 (Qld) (Nature Conservation Act) in Queensland. However, the same cannot necessarily be said of the Environmental Protection Act 1994 (Qld) (Environmental Protection Act).

In relation to any decision made under the EPBC Act, the meaning of a ‘person aggrieved’ as defined under the federal judicial review legislation is specifically broadened to include an Australian resident or body which has been engaged in environmental protection, conservation or research. This has removed any question as to third party standing for most applications by conservation groups for judicial review of an EPBC Act decision, and has paved the way for several recent groundbreaking cases, including the Nathan Dam case.

The Nathan Dam case
The Queensland Conservation Council’s (QCC) successes in the Nathan Dam case, both at first instance and on appeal to the full court of the Federal Court, are clear examples of conservationists’ challenges resulting in a ministerial decision being set aside, significant project delay and increased environmental impact assessment.

The QCC relied upon the broad definition of ‘person aggrieved’ discussed above, to establish standing to challenge the decision of the Federal Minister of Environment and Heritage that, in deciding the level of EPBC Act assessment necessary for the Nathan Dam development proposed by Sudaw Developments Limited, the Minister was not obliged to consider the potential environmental impacts flowing from the irrigation of land by persons other than the proponent using water from the dam.

Interestingly, for future EPBC Act decisions, the Court found that, in deciding whether an action is a ‘controlled action’ under the EPBC Act, the Minister should make a wide enquiry, one which might extend properly to the whole, cumulated and continuing effect of the activity, including the impacts of activities of third parties on the protected environmental values.

Planning and Environment Act 1987 (Vic)
There is a long history of public participation in the planning process in Victoria. Since the infamous Doug Wade decision in the Planning Appeals Board (as it was then) and the Supreme Court of Victoria, the limited public participation processes in the Town and Country Planning Act 1961 were significantly amended. The public participation processes in the Planning and Environment Act 1987 (Vic) are substantial. The public has a right to be involved in amendments to planning schemes and can participate in the planning permit application process.

It was recognised in the early to mid-1990s that objector litigants were sometimes involving themselves in frivolous applications to the Victorian Civil and Administrative Tribunal.
The legislation was amended, as were the numerous planning schemes in Victoria, where an objector’s right to seek review of a decision to grant a planning permit was, in certain circumstances, constrained or removed.

However, there does remain a significant body of statute law that enables objectors and opponents to projects, to use the planning system to further their ends.

Environment Protection Act 1970 (Vic)
Once again, there are significant rights for objectors and opponents to projects, to involve themselves in the works approval and licence application processes.

Applications for review by third parties are described in section 33B of the Act and allows a “person whose interests are affected by the decision” to apply to the Victorian Civil and Administrative Tribunal for review of the decision. 

The reviewable decisions are where a decision has been made to issue a works approval; issue a licence on an application to which section 20(8) applies (that is, where the Environment Protection Authority receives an application which relates to a matter in respect of which a works approval was required to be obtained and has not been obtained and the works have been completed or substantially completed); amend a licence on an application to which section 20A(6) applies (again, this is a situation where an amendment to a waste discharge licence is sought and relates to a matter in respect of which a works approval was required to be obtained and a works approval has not been obtained and the works have been completed or substantially completed); or removes the suspension of a licence.

As is evident above, the words used “a person whose interests are affected by the decision” are broad, but the reviewable decisions are constrained so that the applications for review are to be legitimately based on grounds:
? that the impact on the environment
will unreasonably and adversely affect the interests, whether wholly or partly of that person;
? that the impact on the environment will be inconsistent with State Environment Protection Policy; or
? where there is no State Environment Protection Policy for that area, would cause pollution.
Even though the grounds for review are limited, there is plenty of scope for those opposed to a development or project to involve themselves in the process.

Nature Conservation Act 1992 (Qld)
In 2003, amendments to the Nature Conservation Act in Queensland removed any doubt as to standing, in a judicial review application of a decision under that Act for Australian individuals or associations who have a history of involvement in environmental protection activities. This has opened the door to Nathan Dam style challenges in relation to decisions under the Nature Conservation Act (for example, challenges by conservationists to permits issued under that Act as part of a project’s approvals).

Environmental Protection Act 1994 (Qld)
Unlike the EPBC Act and the Nature Conservation Act, Queensland’s Environmental Protection Act does not yet make special provision to allow conservation groups standing, for judicial review of Environmental Protection Act decisions (such as the grant of an environmental authority for mining activities or registration certificate for chemical storage).
Without such a provision, it has been historically difficult for conservationists to establish sufficient standing to challenge a decision under the Environmental Protection Act. Their interest may have been seen as too remote.

The basic rule to determine standing in such a situation has not changed since the High Court’s decisions in the Australian Conservation Foundation case and Onus v Alcoa, where Justice Gibbs determined that a plaintiff must have a special interest in the subject matter of the action before being able to establish sufficient standing.

However, it seems that judges, over time, have increasingly applied the ‘special interest’ test in favour of conservationists. Most recently, the Queensland Supreme Court in the Alliance to Save Hinchinbrook decision of 6 April 2006 confirmed conservation groups might be granted standing on the basis of a special interest in the subject matter of an action. In that case, Justice Jones was satisfied the conservation group passed the special interest test, partly because it:
? had appropriate organisational objectives;
? was recognised as a body with a specific interest in protection of the relevant aspects of the environment in the area;
? had demonstrated an active recent history in environmental protection; and
? had the support of persons who would be affected by the proposed development.

Effectively, decisions of this nature mean that the courts have opened the door to conservationists seeking judicial review of decisions made under the Environmental Protection Act and other pieces of environmental protection legislation (such as the Marine Parks Act 1982 in the Alliance to Save Hinchinbrook case), where parliament has not.

It may be that the high level of scrutiny placed on administrative decisions under environmental legislation is starting to have a real impact on government decision makers and the decisions themselves.

Perhaps the true results of conservationists’ court challenges are just beginning to develop, and are really yet to be seen.

Either way, the lesson should be well learnt that the processes leading to a key project decision must always be followed carefully. Anything a project proponent can do to ensure the validity of an administrative decision maker’s decision should be done. A referral under the EPBC Act, for example, should be drafted to include all relevant considerations.

John Briggs, Robert Jamieson and Tim Hanmore are partners with law firm Blake Dawson Waldron.

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