Case: Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for Environment and Heritage (2006) 232 ALR 510
Outcome: applied
A submission similar to the applicant's was rejected by Dowsett J in Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510. It was submitted to his Honour that the purpose of the enquiry under s 75 of the Act was "to attribute legal responsibility for impacts to matters protected by Pt 3 of the EPBC Act in light of the subject, scope and objects of the Act" . In response to this submission, at [57] of his reasons, observed: I am not sure that the purpose of Part 3 is to attribute legal responsibility for the causation of adverse impacts. To my mind the purpose of the Act is to prevent or minimise such adverse impact. ... Causation is, of course, not mentioned in s 12 or the other analogous sections in Pt 3. However, it was submitted that there is necessarily a causal relationship between an action and any relevant impact. That is probably so, but I see no reason to introduce notions of causation into the process prescribed by s 75. It is not necessary to go beyond the language of the relevant sections. 36 His Honour noted that the decision-maker in that matter had accepted the possibility that the coal might be burnt, thereby producing additional greenhouse gases which might cause climate change and said that "The point at which he disagreed with the applicant was as to the likelihood of any adverse impact upon a protected matter and the extent thereof". In my view that is precisely the position here. 37 As the written submissions for the Minister point out, it is the link between future conduct and its potential impact that the delegate must investigate. The term "impact" was not defined in the Act until the introduction of s 527E on 19 February 2007, which is the date of the delegate's decision. Given the date of the section's commencement the definition applies to the delegate's decision, although it may be that the decision was made without recourse to the definition. There is, however, nothing in her reasons to indicate that she gave a meaning to the term different to that in the definition. 38 Section 527E(1)(a) of the Act states that an event or circumstance is an "impact" of an action if it is a direct consequence of the action. An indirect consequence of an action is also an "impact" if, (subject to s 527E(2) which is not relevant here) the action is "a substantial cause of that event or circumstance"; s 527E(1)(b). As outlined in [26]-[27] above, the delegate accepted that greenhouse gases in the atmosphere are affecting global climate but, although not expressed in these words, she clearly found that the emissions from the proposed mine would not be a substantial cause of climate change affecting matters protected under Part 3 of the Act. 39 The submission here is not distinguishable from that considered by Dowsett J in the Wildlife Preservation Society case and it should be dismissed for the reasons his Honour gave. The applicant attempted to distinguish the earlier case on the basis that in this case, unlike in the proceedings before Dowsett J, the delegate was provided with an estimate of the amount of greenhouse gas emissions likely to be produced each year; see [25] above. In my view that is not a ground of distinction. The question is not whether there is an impact but whether that impact is, will be or is likely to be significant. In my view Dowsett J was correct to reject introducing notions of causation into the process described by s 75. 40 The applicant criticises the delegate for "attempting to attribute a specific, identifiable and measurable rise in global temperatures or other greenhouse impacts from the mine". I do not accept that this criticism is warranted. It may be that if the delegate had been able to detect such a link she could have reached a positive conclusion that an indirect consequence of the proposed action, namely the construction and operation of a coal mine, was likely to be a substantial and significant cause of harm to matters protected under Part 3. In the absence of such a link, however, the relatively small contribution of the proposed emissions to total global emissions could not be seen as having a significant impact. That is a conclusion that was open to her on the findings she had made. 41 Ground 2 of the application for review contains a claim that the delegate ought to have asked, "whether the proposed action is likely to have an impact on a matter protected by Part 3 of the EPBC Act that is important, notable or of consequence having regard to its context or intensity". Paragraph 56 of the applicant's written submissions expands on this argument: The proper approach required the delegate to ask whether the contribution of this proposal to those impacts which climate change is likely to bring to the matters protected by Part 3 of the EPBC Act is important, notable or of consequence having regard to its context not only in the total Australian and global emissions of greenhouse gases but in comparison to other actions that might reasonably be assessed under the EPBC Act . [emphasis added]