Biodiversity, Forests, Damages, Environmental Impact Assessments, Evidence, Permits, Property, Remedies, Civil, Jurisdiction
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 Appellant’s challenge focussed on the inclusion of conditions requiring Gunns to undertake further testing as provided for in the EIMP including analysis of the effluent from comparable overseas mills, testing on the properties of particulate matter in the effluent and hydrodynamic and sediment transport modelling (the impugned conditions). The Appellant argued that the Minister was seeking, by way of the conditions, information relating to the impact of the discharge of effluent. It was argued that the Minister could not make a decision under the Act without this information and that the decision to approve was not authorised by the Act. The primary judge dismissed the application finding that there was no evidence that the Minister did not have sufficient information to make that decision. He found that there was a broad range of information before the Minister in making his decision and that LFF had failed to establish with precision what degree of knowledge the Minister must have in order to have sufficient certainty about the likely environmental impacts to grant and impose conditions on the approval. Even if it was not possible for the Minister, on the material before him, to establish with "scientific certainty" what the impact of the project on the environment would be, he had considered sufficient information to conclude that the likely impacts of the discharge of effluent could be prevented by imposing conditions to deal with the risk. Accordingly, the Minister had complied with the precautionary principle set out in s 391 of the EPBCA, which envisaged that decisions to approve actions can be made despite a lack of "full scientific certainty".