26 June 2015:  Full Federal Court dismisses Tarkine National Coalition appealThank you devil

The Full Federal Court today dismissed an appeal by the Tarkine National Coalition (TNC) against the Federal Court’s 2014 rejection of TNC’s challenge to the approval of Venture Minerals’ Riley Creek mine.  An overview of the earlier decision is available here.

On appeal to the Full Federal Court, TNC argued that:

  • The initial judge (Justice Tracey) had erred in finding that the Federal Minister was not required to take account of cumulative impacts when considering the likely consequences of approving the mine for listed threatened species
  • The DPEMP provided to the Minister addressed impacts from several other mines, therefore the Minister erred in failing to consider the cumulative impacts of the Riley Creek mine in light of the impacts of existing mines
  • The failure of the EPA Board to determine the issue of cumulative impact meant that the EPA Board assessment did not fulfil the requirements of the bilateral agreement between the Tasmanian and Commonwealth governments
  • Conditions requiring financial contributions to support off-site captive breeding were not an adequate response to localised population impacts on threatened species, such as the Tasmanian Devil.

Justice Jessep (with whom other judges agreed) dismissed all grounds of appeal.  In particular, His Honour noted:

  • There is a distinction drawn in the EPBC Act between matters which the Minister is to “consider” and those which s/he must “take into account”.  To the extent that “cumulative impacts” fell within the matters which the Minister could consider (under s.136(1)(a)), it was up to the Minister to determine what, if any, matters were relevant to an assessment of the potential impacts of a proposal.
  • Many of the matters that the Minister was required to “take into account” were specific documents.  The Minister was therefore required to make a determination on the basis of  those documents, rather than to undertake additional research or investigation.
  • The Minister is under no obligation to take account of the consequences of any action (whether present or anticipated) other than the action being assessed.  Even though the DPEMP referred to several other mining operations, the Minister was able to determine that those operations were not relevant to an assessment of the impacts of the proposed Riley Creek mine.
  • It is within the power of the EPA Board to consider cumulative impacts as part of their assessment of a proposal under the Environmental Management and Pollution Control Act 1994.  However, a failure to consider cumulative impacts did not invalidate the EPA Board’s report for the purposes of the bilateral agreement as all matters relevant to the assessment under the EPBC Act had been fulfilled.
  • It is up to the Minister to determine the appropriate mix of conditions that are necessary or convenient to mitigate impacts on threatened species – such measures are not necesarily restricted to in-situ responses.

TNC has been given until 3 July 2015 to file submissions explaining why it should not be required to pay the State and Federal governments’ costs relating to the appeal.

You can read the full judgement here.