Senate Environment and Communications Legislation Committee

Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015

Submission by the Department of the Environment

1. INTRODUCTION

The Government introduced the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 into the House of Representatives on 20 August 2015. The Bill would repeal section 487 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).

Section 487 of the EPBC Act extends the range of persons and organisations who may apply for judicial review of EPBC Act approval decisions beyond those who may do so under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and the Judiciary Act 1903.

The purpose of the Bill is to bring the arrangements for standing to make a judicial review application under the EPBC Act into line with the standard arrangements for permitting judicial review challenges to Commonwealth administrative decisions as provided for under the ADJR Act and the Judiciary Act.1

2. LEGISLATIVE CONTEXT

History of the extended standing provisions under the EPBC Act

The extended standing provisions contained in section 487 have been part of the EPBC Act since it was passed in 1999. Section 487 has not been amended since that time.

The facilitation of judicial review by the extended standing provisions in the EBPC Act was a fundamental change from the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act). In introducing the EPIP Act in 1974, the then Minister for the Environment and Conservation, the Hon Dr Moss Cass, said in his second reading speech that the government had decided not to have wide standing provisions. Dr Cass noted difficulties in the United States arising from its environmental impact assessment due to “too frequent a resort to the courts”.2

Section 487 was intended to recognise the general public interest in the protection of matters of national environmental significance under the EPBC Act. This is on the basis that the public interest is separate from a personal interest, such as a property right or business interest, affected by a decision made under the EPBC Act. The Explanatory Memorandum to the

1 See the Minister’s Second Reading Speech on the Bill. Parliamentary Debates, House of Representatives, 20 August 2015, 4 (Mr Hunt). 2 Commonwealth, Parliamentary Debates, House of Representatives, 26 November 1974, 4082 (Dr Cass). Environment Protection and Biodiversity Conservation Bill 1998 noted that section 487 extends (and does not limit) the meaning of the term ‘person aggrieved’ in the ADJR Act.3

3. JUDICIAL REVIEW UNDER THE EBPC ACT

Standard judicial review arrangements for EPBC Act decisions

The EPBC Act provides that the Minister or his or her delegate may make a wide range of administrative decisions concerning matters regulated by the Act.

Judicial review, which concerns the legality of the way in which a decision is made by the statutory decision-maker, is available for certain administrative decisions made under the EPBC Act.

Ordinarily, applications for judicial review would be made under:

 section 5 of the ADJR Act (which concerns applications made to the Federal Court); or

 more rarely, under section 39B of the Judiciary Act 1903 (which concerns the applications made to the Federal Court as part of its original jurisdiction, for instance, an application to seek an injunction or a declaration against an officer of the Commonwealth).

Standing to seek judicial review under the standard arrangements

Standing to make an application under section 5 of the ADJR Act is determined by whether someone is a ‘person aggrieved’ by a decision of an administrative character made under an enactment. An aggrieved person includes a person whose interests are adversely affected by the decision. Generally, a person or organisation would need to show a ‘special interest’ that is adversely affected by the relevant decision.

Standing to make an application under section 39B of the Judiciary Act is determined by the common law, which provides that the applicant must either have a private right or be able to establish that he or she has a ‘special interest in the subject matter’. ‘Special interest’ would generally require that the applicant show an interest in the subject matter of the action which is beyond that of any other member of the public.4

Merits review of EPBC Act decisions

Merits review is only available for limited decisions made under the EPBC Act. It allows the Administrative Appeals Tribunal to consider all aspects of an administrative decision and to affirm, vary or set aside the original decision. In the EPBC Act, merits review is available for permit, certificate and declaration decisions under Part 13 and 13A of the EPBC Act (sections 206A(1), 221A, 243A, 263A, 303JG(1), 473(1)). In some cases, the decisions that are reviewable through merits review may be limited to decisions made by the delegate of the Minister.

3 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1998 (paragraph 653) 4 The meaning of “special interest” under the common law test for determining standing was determined by the High Court in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, in which environmental groups sought standing to challenge actions taken under the EPIP Act.

2 Judicial review and section 487 of the EPBC Act

Section 487 extends the standing of parties to seek judicial review of decisions made under the EPBC Act beyond that contemplated by section 5 of the ADJR Act.

Section 487 does this by extending the meaning of the term ‘person aggrieved’ in the ADJR Act beyond its normal application. Under section 487, a person, an organisation or an association (whether incorporated or not) is taken to be a person aggrieved for the purposes of making an application for judicial review under the ADJR Act if:

 In the case of a person – he or she is an Australian citizen or ordinarily resident in Australia or an external Territory.

 In the case of an organisation or association – the organisation or association is incorporated or was otherwise established, in Australia or an external Territory and has included in its objects or purpose, the protection or conservation of, or research into, the environment.

 At any time in the two years immediately before the relevant decision, failure or conduct to which the application relates, the person, organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.

There must be a genuine and consistent pattern of such activities for there to be ‘a series’ of activities.

Associated with this, section 488 provides that a person acting on behalf of an unincorporated organisation is also a ‘person aggrieved’, and therefore may also apply for review under the ADJR Act.

Groups, which might include groups concerned with farming activities or land-use, that cannot show that they meet the tests around having a clearly environmental purpose or engaging in environmental activities, would not fall within the scope of section 487.

4. EXPERIENCE OF THIRD PARTY APPLICATIONS FOR JUDICIAL REVIEW BASED ON SECTION 487

The Department’s experience of judicial review under section 487 of the EBPC Act

Third party applicants and their applications

Since 2000, 22 different third party applicants have sought judicial review of decisions made by the Minister or his or her delegate under the EBPC Act in reliance on section 487. These third party applicants are usually either environmental and community groups (17 applicants) or individuals (5 applicants).

Generally, the third party applicants have challenged decisions concerning:

 the assessment approach by which a project has been assessed;

 decisions that an action is a controlled action or not a controlled action; and

 decisions to approve an action with or without conditions.

3 Third party legal challenges have concerned a variety of projects, including the construction of roads, dams, mines and related infrastructure and residential and commercial developments.

The number of third party legal challenges made under section 487

Since the commencement of the EPBC Act in 2000, there have been 375 third party legal challenges to approval decisions made under Part 7, 9 and 10 of the EPBC Act, which concerned 23 separate projects.6 A detailed breakdown of these legal challenges is set out in Attachment A.

From the commencement of the EBPC Act in 2000 until 19 August 2015, the Minister or his or her delegate approved 817 projects under the EBPC Act. This is distinct from the number of projects referred to the Department, which did not require approval. Since 2000, the Department has been referred around 5,364 projects.

EPBC Act approvals are the subject of an assessment process undertaken by the Department which generally results in the imposition of conditions designed to ensure that environmental concerns are addressed and managed. In many cases proponents also improve their proposals in response to issues and concerns raised by the Department and by third parties.

Third party applicants have been successful in four legal challenges relating to three separate projects. In addition, eight of the 37 legal challenges were discontinued with either the consent of the parties or were withdrawn by the applicant.

The basis of third party legal challenges to EPBC Act decisions

Third party legal challenges have been made to EPBC Act approval decisions on a range of grounds, including that the decision maker:

 did not take into account relevant considerations;

 took into account irrelevant considerations; or

 provided insufficient time for particular elements of the decision process.

In most cases, the question of what is relevant or not relevant, sufficient or insufficient, centres on an interpretation of the requirements of the EPBC Act and related laws.

In the majority of cases, the courts have found that the EPBC Act decision makers’ decisions made were valid. There have, however, been three matters in which the courts have found against the validity of the relevant decision:

 Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (Nathan Dam Case) and Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 (Appeal): The Federal Court found that the Minister failed to take into account a relevant consideration in the exercise of a power (under section 75). The Minister was obliged to have regard not just to the

5 These 37 legal challenges do not include proceedings seeking injunctions under section 475 of the EPBC Act. Injunction proceedings are brought to seek to compel a party to do something or to restrain them from doing something, and do not impact on the validity of an administrative decisions (although there are instances where an injunction has been sought under section 475 in tandem with a judicial review challenge). 6 There was an additional challenge that concerned a case where there was no referral to the Department under the EPBC Act (Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64). 4 immediate impacts of the dam, but to all of the consequences which could be predicted to follow from the dam’s operation.

 Lansen v Minister for Environment & Heritage [2008] FCAFC 189: The majority of the Full Federal Court found that the Minister had failed to consider a relevant consideration under section 134(4)(a) and to comply with a statutory obligation when he did not consider the NT conditions on the approval. The Court found that these failures made the decision to attach conditions invalid, and that in turn made the approval decision itself invalid.

 Tarkine National Coalition Inc v Minister for SEWPAC [2013] FCA 694 (Shree Minerals): The Federal Court held that in deciding to approve the taking of the action, the Minister had failed to have regard to a document called Approved Conservation Advice for Sarcophilus harrisii (Tasmanian Devil) as required under section 139(2) of the EPBC Act.7

The costs to the Commonwealth and the community of dealing with legal challenges

Exposure to legal challenges is a necessary and appropriate discipline in the EPBC Act decision-making process. However, every legal challenge comes at a significant cost – whether or not justified – to the Commonwealth and the broader community.

For example, the Commonwealth has to pay to defend the challenges made, and these costs are generally large. It is not possible to quantify the total costs to the Commonwealth of defending legal challenges since 2000 or to provide an ‘average’ figure for a matter given their diversity, but the costs of individual matters typically run into hundreds of thousands of dollars of professional fees, plus the significant internal costs to the Department of dealing with the proceedings in both time and money. The Department’s experience is that it generally cannot recover its external legal costs when it is successful (as it usually is - see below for further information).

As noted above, these costs may be justified in circumstances where there is a genuine uncertainty in the interpretation of the provisions of the EPBC Act or where there has been an error in the decision process.

Costs of third party judicial review challenges

In 25 legal challenges, the court ordered the third party applicant to pay the Commonwealth’s costs, where the Commonwealth was successful in defending the validity of a decision. A detailed breakdown of these third party challenges is set out in Attachment A.

Based on the information available, the Department has not recovered costs except in seven matters. This is due, in substantial part, to the financial incapacity of relevant applicants to pay the costs of the Commonwealth. Generally, the third party applicant has been an individual or an environmental or community group with limited or no assets.

7 The outcome in Mackay Conservation Group Inc v Commonwealth of Australia (NSD33/2015) (Carmichael), which was discontinued with the consent of the parties, is based on the Federal Court’s reasoning about conservation advices in the Shree Minerals case. 5 5. THE EFFECT OF REPEALING SECTION 487

What parties will have standing to challenge decisions made under the EBPC Act?

The repeal of section 487 would not prevent a person or environmental or community group from applying for judicial review of a decision made under the EPBC Act. Any person or organisation that can establish they have standing will continue to have the ability to commence proceedings for judicial review, either under the ADJR Act or the Judiciary Act.

Will the repeal of section 487 reduce environmental standards?

The EPBC Act protects matters of national environmental significance.8 It does so by requiring the impacts of actions that have, or are likely to have, a significant impact on a matter of national environmental significance to be assessed before an approval is granted which allows the taking of the action (whether subject to conditions or not).

The repeal of section 487 does not change the assessment and approval provisions of the EPBC Act as set out in Chapter 4, nor does it alter the matters that the Minister must have regard to when deciding whether to grant an approval.

Opportunities for public engagement through the referral and assessment processes of the EPBC Act

The EPBC Act contains expansive public consultation requirements in its referral and assessment processes. Once a matter has been referred under the EPBC Act, the referral will be published and the public has an opportunity to comment on whether or not the action is a controlled action. The Minister must take into account any comments made by the public in making the controlled action decision.

If a controlled action decision is made, the public has an opportunity to comment on the assessment documentation prepared by the proponent. Any comments received by the proponent must be taken into account in the finalisation of the assessment documentation. Following submission of the assessment documentation to the Minister, the EPBC Act enables the Minister to seek public comment on the proposed decision and conditions (if any), which must be taken into account by the Minister before deciding whether to grant an approval and what conditions (if any) to impose on the approval.

These wide ranging public consultation processes for specific approval processes will continue to provide an opportunity for the public to engage in the decision-making process under the EPBC Act and will not be affected by the repeal of section 487.

8 The nine matters of national environmental significance to which the EPBC Act applies are: world heritage properties, national heritage places, wetlands of international importance, nationally threatened species and ecological communities, migratory species, Commonwealth marine areas, the Great Barrier Reef, nuclear actions (including uranium mining) and water resources (in relation to coal seam gas development and large coal mining development). In addition, the EPBC Act confers jurisdiction over actions that have a significant impact on the environment where the actions affect, or are taken on, Commonwealth land, or are carried out by a Commonwealth agency. 6 ATTACHMENT A

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 – JUDICIAL REVIEW APPLICATIONS

Category Counting appeal proceedings as a Counting first instance and separate challenge appeal as same challenge

Total number of referred projects subject to legal challenge 23^ 23^

Third party proceedings challenging EPBC Act Part 7, 9 or 10 decisions (one 37 27 proceedings did not relate to a project that had been referred)

Third party proceeding not challenging a particular referral 1 1

Third party wins in challenges to approval or controlled action decision (based on Australia 4 3 Institute information)

Number of matters not proceeding to hearing (total number discontinued) 8 8

Number of costs orders in favour of the Commonwealth 25 -

Number of costs orders requiring Commonwealth to pay the applicant’s costs 5 -

Number where no costs orders made or no information available 8 -

Number of costs orders where the Commonwealth recovered costs 7 -

This table does not classify consent order decisions as ‘wins’. Also, Brown is included in the first column of ‘third party wins’ but not in the second column as the third party lost on appeal. This table has been prepared using information obtained from publicly available information and does not include matters which are ongoing.

^ This figure counts:

 Separate referred projects relating to a Pulp Mill at Gunn’s Bell Bay as separate referrals.

 Green Wedges (VID779/2014), which was a challenge related to a strategic assessment (rather than a particular referral).

1 Third party appeals under Parts 7, 9 and 10 EPBC Act litigation matters – 2000 – 2015 (first proceedings in 2002)

Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

JUDICIAL REVIEW PROCEEDINGS

Humane Society 13/12/02 12/02/03 Agreement between No referral Commonwealth Each party to bear own costs. International Inc v Commonwealth and made, successful Minister for the States to allow fruit therefore not 1 Environment & Heritage growers to shoot flying a challenge to [2003] FCA 64 foxes without approval a decision. under the EPBC Act

Queensland Conservation 24/12/02 19/12/03 EPBC 2002/770, later Controlled Commonwealth Commonwealth to pay Council Inc v Minister for re-referred as action unsuccessful – Applicant’s costs – see appeal the Environment & 2008/4313 – decision and see appeal 2 Heritage [2003] FCA construction of Nathan assessment 1463 Dam approach decision

Mees v Kemp [2004] FCA 10/06/03 31/03/04 EPBC 2002/580 – Not a Commonwealth Commonwealth awarded 50 366 (original decision) and controlled successful – see per cent of its costs – see 3 EPBC 2002/581 action appeal appeal (Split referral) – decision construction of freeway

Paterson v Minister for 04/03/04 26/11/04 EPBC 2003/1103 - Not to revoke Commonwealth Commonwealth awarded costs the Environment & Powerlink transmission a ‘not a successful and the Commonwealth 4 Heritage & Anor [2004] line controlled recovered some of its costs. FMCA 924 action’

decision

2 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Save the Ridge Inc v 10/06/04 20/01/05 EPBC 2003/1156 – Not a Commonwealth Commonwealth awarded costs Commonwealth of Gungahlin Drive controlled successful – see – see appeal 5 Australia [2005] FCA 17 extension action appeal decision

Wildlife Preservation 22/07/05 15/06/06 Applicant sought review Not a Commonwealth Commonwealth awarded costs. Society of Queensland of two decisions controlled successful Commonwealth did not recover Proserpine/Whitsunday approving the ‘Isaac action costs. Branch Inc v Minister for Plains project’ decision the Environment & (proposed by Bowen 6 Heritage & Ors [2006] Central Coal FCA 736 Management Pty Ltd – EPBC 2005/2070) and the ‘Sonoma project’ (proposed by QCoal Pty Ltd- EPBC 2005/2080)

The Investors for the 08/06/07 09/08/07 First referral- Controlled Commonwealth Commonwealth awarded costs Future of Tasmania Inc v EPBC 2004/1914 – action successful and Commonwealth recovered Minister for the Gunns Pulp Mill decision and some of its costs 7 Environment and Water assessment Second referral – EPBC Resources [2007] FCA approach 2005/2262 1179 decision

The Wilderness Society 03/08/07 09/08/07 EPBC 2004/1914, Controlled Commonwealth Commonwealth awarded costs Inc v The Hon Malcolm revised to 2005/2262, action successful – see – see appeal Turnbull, Minister for the revised to 2007/3385 decision and appeal 8 Environment and Water assessment Resources [2007] FCA approach 1178 decision

3 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Anvil Hill Project Watch 17/05/07 20/09/07 Reviewed decision that Not a Commonwealth Commonwealth awarded costs Association Inc v Minister mine was not a controlled successful – see – see appeal for the Environment and ‘controlled action’ (mine action appeal 9 Water Resources [2007] proposed by Centennial decision FCA 1480 Hunter Pty Ltd – EPBC 2007/3228)

Blue Wedges Inc v 16/11/07 15/01/08 EPBC 2002/576 - Approval Commonwealth Costs not awarded to the Minister for the Review of decision to decision successful Minister on the basis of public Environment, Heritage & approve the deepening interest grounds the Arts [2008] FCA 8 of the shipping channels 10 of Port Phillip Heads in Port Phillip Bay (the Bay) and the Yarra River and its approaching channels.

Blue Wedges Inc v 29/01/08 28/03/08 2002/576 - Review of Approval Commonwealth Commonwealth awarded costs Minister for the decision to approve the decision successful and the Commonwealth did not Environment, Heritage & deepening of the recover costs the Arts [2008] FCA 399 shipping channels of 11 Port Phillip Heads in Port Phillip Bay (the Bay) and the Yarra River and its approaching channels.

4 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Your Water Your Say Inc 02/04/08 16/05/08 2008/3948 - Review of Approval Commonwealth Commonwealth awarded costs v Minister for the decision that pre- decision successful and the Commonwealth Environment, Heritage & approval work to build a recovered some of its costs. 12 the Arts [2008] FCA 670 desalination plant did not require approval under EPBC Act.

Lawyers for Forests Inc v 29/11/07 9/04/09 EPBC 2004/1914, Controlled Commonwealth Commonwealth awarded costs Minister for the revised to 2005/2262, action successful – see – see appeal Environment, Heritage & revised to 2007/3385 - decision and appeal 13 the Arts [2009] FCA 330 Bell Bay Pulp Mill. assessment approach decision

Lansen v Minister for 13/02/07 13/06/08 Referral 2003/954 – Approval Commonwealth Commonwealth awarded 25 Environment & Heritage approval of McArthur decision successful – see per cent of costs (this order [2008] FCA 903 River Mine appeal was set aside on appeal) 14 EPBC 2009/4712, 2011/5904, 2013/6924 & 2014/7210 also relate to the McArthur River Mine referral listed above. Bat Advocacy NSW Inc v 16/07/10 17/02/11 Referral 2008/4646 - Approval Commonwealth Commonwealth awarded costs Minister for Environment, Approval re dispersal of decision successful – see – see appeal 15 Heritage & the Arts [2011] flying foxes made appeal FCA 113 13/05/2010

5 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Buzzacott v Minister for 13/02/12 20/04/12 EPBC 2005/2270. Approval Commonwealth Costs not awarded to the SEWPAC (No 2) [2012] decision successful – see Minister on the basis of public EPBC 2014/7280 & 16 FCA 403 appeal interest grounds. 2015/7416 also relates to this referral.

Northern Inland Council 08/07/13 20/12/13 EPBC 2009/5256 - Approval Commonwealth Commonwealth awarded 80 for the Environment Inc v decision to approve decision successful per cent of its costs 17 Minister for the Boggabri mine Costs not recovered Environment [2013] FCA (proposed by Boggabri 1418 Coal Pty Ltd)

Northern Inland Council 18/07/13 20/12/13 EPBC 2010/5566 - Approval Commonwealth Commonwealth awarded 80 for the Environment Inc v decision to approve decision successful per cent of its costs 18 Minister for the Maules Creek Coal Mine Cost not recovered Environment [2013] FCA Project (proposed by 1419 Aston Coal 2 Pty Ltd)

Tarkine National Coalition 02/04/13 17/07/13 EPBC 2011/5846 - Approval Commonwealth Commonwealth required to pay Inc v Minister for approval of hematite decision unsuccessful costs 19 SEWPAC [2013] FCA mine (proposed by 694 Shree Minerals Ltd)

Tarkine National Coalition 02/10/13 15/05/14 EPBC 2012/6339 – Approval Commonwealth Commonwealth awarded costs Inc v Minister for the approval of a mine decision successful – 20 - In negotiation Environment [2014] FCA (proposed by Venture see appeal 468 Minerals Ltd)

6 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

APPEALS TO JUDICIAL REVIEW PROCEEDINGS

Minister for the 28/01/04 30/07/04 EPBC 2002/770, later Controlled Commonwealth Commonwealth to pay costs Environment and re-referred as action unsuccessful Heritage v Queensland 2008/4313 decision and 21 Conservation Council Inc assessment [2004] FCAFC 190 approach decision

Mees v Kemp [2005] 21/05/04 11/02/05 EPBC 2002/580 – Not a Commonwealth Commonwealth awarded costs FCAFC 5 (original decision) and controlled successful and Commonwealth recovered 22 EPBC 2002/581 action some of its costs. (Split referral) decision

Save the Ridge Inc v 08/02/05 16/09/05 EPBC 2003/1156 Not a Commonwealth Commonwealth awarded costs Commonwealth [2005] controlled successful – recovery information 23 FCAFC 203 action unknown decision

Wilderness Society Inc v 14/08/07 22/11/07 EPBC 2004/1914, Not a Commonwealth Commonwealth awarded costs The Hon Malcolm revised to 2005/2262, controlled successful and the Commonwealth Turnbull, Minister for the revised to 2007/3385 action recovered some of its costs. 24 Environment and Water decision Resources [2007] FCAFC 175

7 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Anvil Hill Project Watch 11/10/07 14/02/08 EPBC 2007/3228 - mine Not a Commonwealth Commonwealth awarded Association Inc v Minister proposed by Centennial controlled successful costs– Recovery information 25 for the Environment and Hunter Pty Ltd action not known Water Resources [2008] decision FCAFC 3

Lawyers for Forests Inc v 30/04/09 03/09/09 EPBC 2004/1914, Not a Commonwealth Commonwealth awarded Minister for the revised to 2005/2262, controlled successful costs– Recovery information 26 Environment, Heritage & revised to 2007/3385 - ll action not known the Arts [2009] FCAFC Bay Pulp Mill. decision 114

Lansen v Minister for 30/06/08 17/12/08 EPBC 2003/954 – Approval Commonwealth Commonwealth to pay costs, Environment & Heritage approval of McArthur decision unsuccessful including original proceedings [2008] FCAFC 189 River Mine 27 EPBC 2009/4712, 2011/5904, 2013/6924 & 2014/7210 also relate to the McArthur River Mine referral listed above. Bat Advocacy NSW Inc v 10/03/11 06/05/11 EPBC 2008/4646 - Approval Commonwealth Commonwealth awarded costs Minister for Environment, Approval re dispersal of decision successful 28 Costs not recovered Heritage & the Arts [2011] flying foxes made FCAFC 59 13/05/2010

Buzzacott v Minister for 11/05/12 08/10/13 EPBC 2005/2270. Approval Commonwealth Commonwealth awarded costs SEWPAC [2013] FCAFC decision successful EPBC 2014/7280 & Costs not recovered 29 111 2015/7416 also relates to this referral.

8 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Tarkine National Coalition 05/06/14 26/06/15 EPBC 2012/6339 – Approval Commonwealth Commonwealth awarded costs Inc v Minister for the approval of a mine decision successful 30 In negotiation Environment [2015] (proposed by Venture FCAFC 89 Minerals Ltd)

DISCONTINUED/RESOLVED THIRD PARTY PROCEEDINGS

Tasmania Conservation 26/11/03 07/07/04 EPBC 2002/565 - Approval Discontinued/ Commonwealth awarded costs Trust v Minister for Construction and decision – costs recovered. withdrawn Environment & Heritage operation of the 31 (NSD2007/2003 – costs Meander Dam addressed by [2004] FCA 883)

Save the Ridge Inc v 12/12/03 06/02/04 EPBC 2003/1156 – Not a Discontinued Commonwealth to pay agreed Minister for the Gungahlin Drive controlled costs of the applicant. The 32 Environment and extension action Commonwealth paid costs of Heritage (ACD33/2003) decision $10,500

Sweetwater Action Group 08/10/09 07/12/09 Residential development Approval Discontinued No order as to costs Inc v Minister for the by Huntlee Holdings Pty decision 33 Environment, Heritage Ltd (EPBC 2007/3557) and the Arts & Anor (NSD1136/2009)

Alan Oshlack v Minister 29/10/09 13/04/10 EPBC 2008/4252 – Approval Discontinued by No order as to costs for Environment, Heritage extension of Beverly decision consent 34 & the Arts & Anor Uranium Mine (NSD1271/2009)

9 Number Case name Date Date of EPBC Referral No./ Decision Outcome Costs orders and recovery filed judgment/ Project description challenged resolution

Tasmanian Conservation 06/06/11 19/09/11 Gunn’s Bell Bay Pulp Approval Discontinued Commonwealth awarded costs 35 Trust Inc v Minister for Mill (Referral decision - costs recovered. SEWPAC (ACD24/2011) 2007/3385).

Mackay Conservation 12/01/15 04/08/15 EPBC referral Approval Discontinued No order as to costs Group Inc v 2010/5736 decision 36 Commonwealth of Australia (NSD33/2015)

Alliance to Save 08/01/15 16/03/15 EPBC 2014/7355 & Assessment Discontinued No order as to costs Hinchinbrook Inc v 2014/7356 approach 37 Minister for the decision Environment (QUD8/2015)

Green Wedges 19/12/14 18/06/15 Actions associated with Strategic Discontinued No order as to costs Guardians Alliance Inc v urban development in assessment Minister for the the south-east growth decision Environment corridor approved under 38 (VID779/2014) the endorsed program Delivering Melbourne’s Newest Sustainable Communities.

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