Case: Minister for Environment and Heritage v Queensland Conservation Council Inc and Another [2004] FCAFC 190 ; (2004) 139 FCR 24
Outcome: applied
Mr Mooney's evidence supports the view that the forestry operations in Wielangta in coupes 17E and 19D and the proposed forestry operations in Wielangta in coupes other than 17E and 19D are not likely to have a significant impact on the eagle, having regard to its endangered status and all other threats to the eagle. However, despite that view, a question arises about whether, as a matter of law, an impact may be significant because of its 'cumulative' or 'potential' impacts; see Minister for Environment and Heritage v Queensland Conservation Council Inc and Another ( 'Queensland Conservation Council' ) [2004] FCAFC 190 ; (2004) 139 FCR 24 at [60] . 92 As a Full Court said in Queensland Conservation Council at [53]: 'It is unhelpful, we consider, to attempt to paraphrase the expression "all adverse impacts" in s 75(2)(a) of the EPBC Act by recourse to phrases like "inextricably involved" or "natural consequence". "Impact" in the relevant sense means the influence or effect of an action: Oxford English Dictionary , [2 nd ed] 5. As the respondents submitted, the word "impact" is often used with regard to ideas, concepts and ideologies: "impact" in its ordinary meaning can readily include the "indirect" consequences of an action and may include the results of acts done by persons other than the principal actor. Expressions such as "the impact of science on society" or "the impact of drought on the economy" serve to illustrate the point. Accordingly, we take s 75(2) to require the Environment Minister to consider each way in which a proposed action will, or is likely to, adversely influence or effect the world heritage values of a declared World Heritage property or listed migratory species. As a matter of ordinary usage that influence or effect may be direct or indirect. "Impact" in this sense is not confined to direct physical effects of the action on the matter protected by the relevant provision of Pt 3 of Ch 2 of the EPBC Act. It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter. Provided that the concept is understood and applied correctly in this way, it is a question of fact for the Environment Minister whether a particular adverse effect is an "impact" of a proposed action. However, we do not consider that the Environment Minister did apply the correct test in answering the question of fact which had arisen in the present case.' 93 Mr Mooney's definition of 'impact' as embracing effects 'significantly close to allow it to be said that they are the consequences of forestry operations' provides a more limited view of the word 'impact' than that adopted by the Full Court, that is, the influence or effect of an action. 94 Even though forestry operations in Wielangta (in coupes 17E and 19D) and the proposed forestry operations in coupes other than 17E and 19D will cause a loss of breeding and foraging habitat for the eagle which is relatively insignificant in the context of other factors causing loss to such habitat, that loss can still be considered 'significant' in the context of legislation which is designed 'to protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species)...'. Loss of habitat caused by forestry operations, while small when compared to other causes, has a significant impact on a threatened species where 'to protect' is seen as a duty not just to maintain population levels of threatened species but to restore the species. 295 Construction of the EPBC Act is informed by the Conventions which it implements in compliance with Australia's international obligations. So much was recognised by a Full Court of this Court in Minister for Environment and Heritage v Queensland Conservation Council Inc and Anor [2004] FCAFC 190 ; (2004) 139 FCR 24 (' Queensland Conservation Council ') at [2]: 'The EPBC Act was enacted to implement the provisions of the Convention on Biological Diversity 1992 , and other international environmental agreements into Australian law. It also represents an attempt to consolidate and clarify the Commonwealth's responsibilities for environmental protection within the Australian Federation (see Second Reading Speech, House of Representatives, Hansard, 29 June 1999, at 7770). The objects of the EPBC Act are set out in s 3(1) as follows: The objects of this Act are: (a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and (b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and (c) to promote the conservation of biodiversity; and (ca) to provide for the protection and conservation of heritage; and (d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and (e) to assist in the co-operative implementation of Australia's international environmental responsibilities; and (f) to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity; and (g) to promote the use of indigenous peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.' 297 The Biodiversity Convention referred to by the Full Court in Queensland Conservation Council underpins the EPBC Act. It obliges Australia to take steps to promote conservation and the recovery of threatened species; see Arts 8(d), (e) and (f). 298 Australia is also a signatory to the Convention on Conservation of Nature in the South Pacific (done at Apia, Western Samoa on 12 June 1976), otherwise known as the Apia Convention. Australia acceded to the Apia Convention on 28 March 1990 and it came into force in Australia on 26 June 1990. It requires Contracting Parties to: '1. ... in addition to the protection given to indigenous fauna and flora in protected areas, use their best endeavours to protect such fauna and flora (special attention being given to migratory species) so as to safeguard them from unwise exploitation and other threats that may lead to their extinction. 2. ... establish and maintain a list of species of its indigenous fauna and flora that are threatened with extinction. Such lists shall be prepared as soon as possible after this Convention has come into force and shall be communicated to the body charged with the continuing bureau duties under this Convention. 3. ... protect as completely as possible as a matter of special urgency and importance the species included in the list it has established in accordance with the provisions of the last preceding paragraph. The hunting, killing, capture or collection of specimens (including eggs and shells) of such species shall be allowed only with the permission of the appropriate authority. Such permission shall be granted only under special circumstances, in order to further scientific purposes or when essential for the maintenance of the equilibrium of the ecosystem or for the administration of the area in which the animal or plant is found. 4. ... carefully consider the consequences of the deliberate introduction into ecosystems of species which have not previously occurred therein.' 299 Section 139 of the EPBC Act implements these two Conventions by providing: 'In deciding whether or not to approve for the purposes of a subsection of section 18 or section 18A the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with: (a) Australia's obligations under: (i) the Biodiversity Convention; or (ii) the Apia Convention; or (iii) CITES; or (b) a recovery plan or threat abatement plan.'