Legal Perspectives from EDO Tasmania 

Thank you devil15 May 2014:  Tarkine National Coalition v Minister for Environment

The Federal Court today dismissed the Tarkine National Coalition’s application to review the former Environment Minister’s decision to approve the Venture Minerals’ mine at Riley Creek.  The mine is situated in the Tarkine area of Tasmania’s north west.

The Tarkine National Coalition (TNC) argued that:

  • The Minister should have considered alterations to the mine permit conditions as a result of TNC’s appeal to the Resource Management and Planning Appeal Tribunal.
  • The Minister had failed to take into account cumulative impacts of the mine proposal, when considered together with other developments (including other mine proposals) in the area.
  • The failure to take into account the cumulative impact meant that EPA Board assessment did not fulfil the requirements of the bilateral agreement between the Tasmanian and Commonwealth governments.
  • Alternatively, the bilateral agreement under which the EPA Board assessed the proposal was invalid because it did not provide for assessment of cumulative impacts.

Justice Tracey ruled against TNC on all its grounds of review.  TNC has been given seven days to file submissions explaining why it should not be required to pay costs.

You can read the full judgement here.

The Court’s ruling is concerning from an environmental perspective on two fronts:

  • Firstly, the decision effectively means that the Federal Minister does not have to consider alterations made to permit condition through the state appeal process.  His Honour said the Minister’s obligation to consider the state permit conditions “may potentially extend to conditions actually imposed”.  However, where the state assessment process is exposed as deficient in an appeal, the ruling suggests this is not relevant to the Minister’s decision making process.
  • Secondly, the ruling states that there is no obligation on the Minister to take into account cumulative impacts of projects.  This is concerning – limiting the consideration of impacts in this way presents a risk for threatened species, such as the Tasmanian devil, of “death by a thousand cuts”.

Interestingly, the Federal Court held that it was within the EPA Board’s powers to consider cumulative impacts in an assessment under the Environmental Management and Pollution Control Act 1994 (Tas).  This is contrary to the position previously adopted by the EPA.