Original language


Date of text
Type of court
National - higher court
Court name
Federal Court of Australia
Seat of court
Reference number
[2007] FCAFC 175
Biodiversity, Forests, Wetlands, Declaratory Relief, Evidence, Wildlife, Property, Standing, Jurisdiction, Permits
Free tags
Environment gen.
Legal questions
Mineral resources
The Wilderness Society Inc appealed to the Full Court of the Federal Court from a judgment given by a Judge of the Court which dismissed the Society’s challenge to two decisions made by the Minister for the Environment and Water Resources, the Hon. Malcolm Turnbull. The Minister’s decisions were made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The decisions concerned the selection of the process by which the proposal by Gunns Limited to construct and operate a pulp mill at Bell Bay in northern Tasmania was assessed under the EPBC Act, the time provided for public comment as part of that process and the identification of the matters of national environmental significance to be considered in the course of that process. The Full Court, in a majority decision, has dismissed the appeal from the judgment given by the primary judge. All members of the Full Court rejected the following submissions of the Wilderness Society: (1) that the referral by Gunns Limited to the Minister of its proposal to construct and operate a pulp mill at Bell Bay was invalid because Gunns Limited had withdrawn an earlier referral relating to the same proposed action; (2) that the Minister denied the Wilderness Society procedural fairness in respect of his final approval decision by setting a period for public comment on the pulp mill proposal that was too short; and (3) that in setting a period of 20 days for public comments on the pulp mill proposal the Minister acted for an improper purpose, namely to accommodate a time frame that suited the commercial interests of Gunns Limited. The majority of the Court also rejected the submission of the Wilderness Society that the Minister was obliged to consider any adverse impacts on matters of national environmental significance of the forestry operations necessary to provide the wood chips to feed the pulp mill. The majority took the view that the EPBC Act discloses a clear legislative intent ordinarily to exclude forestry operations undertaken pursuant to Regional Forest Agreements (RFAs) from the assessment regime established by the EPBC Act. It noted that the Regional Forests Agreements Act 2002 (Cth) makes provision for a separate regime built upon RFAs which are required to take into account environmental and other values of national significance in relation to forestry operations. The Tasmanian Regional Forest Agreement was signed by the Australian and Tasmanian Governments in 1997.