Legal Perspectives from EDO Tas

Supreme Court decision in Tarkine statement of reasons case – the dangers of relying on narrow test for standing

Thank you devilOn 19 August 2016, the Full Court of the Supreme Court heard the Tasmanian Government’s appeal against Justice Wood’s decision that the Tarkine National Coalition (TNC, also known as Save the Tarkine) was entitled to a statement of reasons for decisions to issue mining leases in the Tarkine.

The Full Court has reserved its judgment, and a decision may not be made for several months.

To read Justice Wood’s original decision, click here.

Why is this case significant?

Justice Wood’s decision recognised that environmental groups such as the TNC can have a legitimate interest in resource management decisions.

The decision also highlights the benefits of open standing rules. Although TNC was able to establish that it had ‘standing’ under a restricted test, doing so took nearly 12 months, and the appeal will further extend this.  The time and cost involved has exposed both TNC and the State government to unnecessary costs, and created uncertainty for Venture Minerals.

Background

In December 2013, the Director of the EPA challenged TNC’s standing to request reasons for his decision to amend the conditions of an environmental authority for the Shree Minerals’ iron ore mine. In June 2014, Chief Justice Blow concluded that the TNC was a “person aggrieved” by the amendments to the permit and was entitled to reasons for the decision to amend. TNC received the statement of reasons and, 12 months after the decision was made, was successful in challenging the decision to amend the environmental conditions.

 

What is this case about?

In 2014, TNC wrote to the Tasmanian Minister for Mines to request a statement of reasons for his decision to grant mining leases for Venture Minerals’ Mt Lindsay and Livingstone mines (both in the Tarkine area). The Minister refused to provide reasons, arguing that TNC was a not a “person aggrieved” by the decision, within the meaning of the Judicial Review Act 2000 (that is, TNC did not have “standing” to request reasons). In order to establish that it had “standing”, the TNC needed to demonstrate that its interest would be “adversely affected” by the decision to grant the mining lease.

The Minister argued that, unlike the earlier environmental conditions decision, the decision to grant the lease did not impact on the environment. The Minister noted that mining cannot occur without a mining lease and a planning permit issued following consideration under the Environmental Management and Pollution Control Act 1994 and the Land Use Planning and Approvals Act 1993, therefore no interests are affected by the grant of the mining lease alone.

The Minister also argued that, even if TNC was a “person aggrieved” by the decision, the Supreme Court should exercise its discretion to refuse to order the release of a statement of reasons. He argued that TNC had other, more appropriate, options available to challenge mining (specifically, an appeal against any subsequent decision to grant a planning permit for the mining operations).

What did the Supreme Court decide?

Justice Wood held that interests may be adversely affected where those interests were “exposed to peril”. Her Honour did not agree that the fact that the mining lease decision was not the final approval required to undertake mining meant that nobody could have an interest in that decision:

[To suggest that no one can have an interest in the decision to grant a mining lease] seems wrong due to the significance of the decision… [T]he fact that there are other procedural stages before the decision can be carried into effect does not deprive the decision of its inherent importance.”

Justice Wood was satisfied that persons or groups could have an interest in the mining lease decision. Having regard to TNC’s objectives and history of activities to protect the Tarkine, her Honour held that “[c]learly, the decisions authorising mining in the Tarkine adversely affect [TNC]’s interests”.

Justice Wood held that the availability of other appeal options was not a relevant consideration – an appeal to the Resource Management and Planning Appeal Tribunal would not challenge the decision to grant the mining lease, which was the decision with which TNC was specifically interested in this application. Justice Wood considered that the objectives of the Judicial Review Act 2000, to promote the rule of law and improve the quality of decision making, made a strong case for requiring reasons to be given.

What is the Full Court being asked to decide?

The Tasmanian government challenged Justice Wood’s decision on similar grounds to those argued in the original hearing: that, while TNC may have an interest in environmental impacts in the Tarkine, the decision to issue the mining lease did not create any environmental impact. Because Venture Minerals would need to get a planning permit before mining could start, and the permit would be issued only after an environmental impact assessment, the decision to issue a planning permit could affect TNC’s interests, but the mining lease decision alone would not.

TNC argued that the issue of the mining lease could affect its interests (even without a planning permit), because:

  • a mining lease is a critical component of any authority for Venture Minerals to conduct their planned mining operations.
  • in issuing the mining lease, the Minister must be satisfied that sufficient information regarding environmental impacts has been submitted – without a statement of reasons, it is not clear whether that requirement has been met
  • conditions of the lease relating to the security deposit are relevant to whether adequate funds will be available to remediate any future environmental damage
  • where a mining lease has been issued, landowner consent is not required to apply for a planning permit
  • the existence of the mining lease may compromise future consideration of the Tarkine area as a National Park or national heritage place.

The Full Court heard these arguments from both parties, and has reserved its judgement.

What difference would open standing make?

Justice Wood’s decision, and the earlier decision of Chief Justice Blow, make clear that active environmental organisations such as the TNC may have a legitimate interest that is affected by resource management decisions.  When challenged, it is likely that such environment groups will be able to demonstrate that they have sufficient “standing”.

However, as shown in both instances, demonstrating standing involves significant time, cost and effort for all parties.  The appeal has involved further time and resources. This is a distraction from the substantive matters under review, tying up court time and government and NGO resources, and potentially creating uncertainty for significant projects.

Open standing, or a broader test of standing such as that currently in the EPBC Act, would alleviate much of the burden for concerned ENGOs and allow limited resources to be directed to challenging the substantive issues in an efficient way.  Courts will retain the ability to dismiss frivolous and vexatious proceedings, but will be able to ensure that challenges focus immediately on the key issues to be determined.

EDOs of Australia supports broad standing provisions in State and national legislation.  To read our submission in response to the proposal to reduce standing under the EPBC Act, click here.

 

Previous posts