Legal Perspectives from EDO Tas

Federal Court dismisses Macquarie Harbour challenge

Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011 – for a detailed summary, click here.

On 6 July 2018, the Federal Court dismissed Huon Aquaculture’s application for a declaration that the Commonwealth Minister’s decision authorising the expansion of salmon farming in Macquarie Harbour was invalid.

The decision had been that the expansion was NOT a controlled action under the EPBC Act provided it was carried out in a “particular manner”.  Huon argued that the “particular manner” described was uncertain as it allowed revised biomass limits to be set by the Tasmanian government without reference to impacts on matters of national environmental significance (e.g the Maugean skate and the TWWHA).

The Court did not decide on the merits of Huon’s claim.  Instead, the Court considered a range of factors to decide whether, even if Huon was correct, it should exercise its discretion to invalidate the Minister’s decision.  Despite accepting that Huon had genuine concerns regarding the impacts of declining dissolved oxygen levels, and finding it was “more likely than not” that a Minister reconsidering the expansion today would find that it was a controlled action, the Court held:

Even on [the assumption that Huon succeeded in establishing its grounds], the cumulative weight of the factors… in favour of refusing relief, in the specific facts of this case, significantly outweigh the reasons to the contrary. They collectively justify the Court exercising its discretion to refuse Huon the relief it seeks.

Factors influencing the exercise of discretion

  • The time taken for Huon to commence proceedings (more than 4 years after the expansion decision), and the profits made by Huon during the intervening period based on the decision it now sought to challenge.  While acknowledging that Huon had spent many years lobbying the Tasmanian and Commonwealth governments regarding biomass limits in Macquarie Harbour, the Court did not think this justified the delay in taking legal action
    (For an updated timeline of events in Macquarie Harbour, click here)
  • The detrimental economic impacts on Petuna and Tassal and their employees if farming operations were reduced.  The Court described these impacts as “significantly adverse for Tassal but potentially catastrophic for Petuna.”
  • Despite its genuine concerns regarding declining dissolved oxygen levels, Huon failed to call evidence to establish past, present or future environmental harm.  The Court held that Huon had not established “that there is in fact a public interest in the grant of relief.”
  • The recent biomass determination by the EPA Director reduced allowable biomass in the harbour to pre-expansion levels, which was the outcome effectively sought by Huon in the proceedings.  The Court considered that this made a declaration that the Minister’s decision was invalid unnecessary.

The Court dismissed Huon’s application and ordered Huon to pay costs incurred by Tassal, Petuna and the Minister (in part). Huon has until 27 July 2018 to appeal the Court’s decision.

For a summary of the decision, click here.  To read the whole judgment, click here.

Implications of the decision

The decision turns very strongly on the particular circumstances in Macquarie Harbour and between the parties. However, some of the broader implications of the decision include:

  • Any person concerned by a decision made by the Minister should proceed swiftly to legal proceedings – any delay resulting from efforts to seek political, regulatory, or commercial resolutions may be a factor counting against any legal relief ultimately sought once other options. This is potentially concerning for public interest parties with limited resources, who often pursue all other options before resorting to legal proceedings.
  • Where an activity relying on a pre-existing use right is expanded or intensified, any challenge to the approval of the expansion / intensification will not restore the pre-existing use rights. Once an activity is expanded, existing use rights are lost.
  • The Court may consider discretionary factors regarding relief prior to forming a view as to the legal question that would otherwise give rise to the availability of that relief.  Particularly where adverse economic impacts factor heavily against the exercise of discretion, assessment of discretion as a preliminary matter may reduce opportunities for substantive legal issues to be debated. Even where relief may not be granted, judicial consideration of the merits of arguments raised by the parties can lead to a better understanding of the operation of the EPBC Act.
  • In weighing discretionary factors, the Court’s primary consideration is the administration of justice, rather than the objectives of the EPBC Act.

 

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19 November 2015 – Government continues to support reduced appeal rights

26 June 2015 – Federal Court dismisses Tarkine National Coalition appeal

23 December 2014 – Federal Court imposed interim injunction to prevent 4WDs in Western Tasmania Aboriginal Cultural Landscape

17 December 2014:  Supreme Court rules amendments to Shree permit unlawful

20 August 2014: Blaming planning appeals for Venture delays misleading

27 June 2014: Lack of scrutiny of protest laws concerning

18 June 2014:  EPA ordered to provide reasons re Shree mine decision

27 May 2014: Brett Whiteley’s call for costs to be pursued misunderstands the law

21 May 2014: Environment Minister’s World Heritage Claims Inaccurate

15 May 2014:  Senate Committee Report on amendments to the TWWHA boundaries

15 May 2014:  Tarkine National Coalition v Minister for Environment

14 May 2014:   Shree Minerals Nelson Bay Mine – Could the EPA have asked for “a little extra”?