05/08/2019

Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102 (Dawson)

The recent decision of the Court of Appeal of the Supreme Court of Western Australia in Dawson has clarified the role of the Environmental Protection Authority (EPA) and its recommendations in relation to the assessment and determination of proposals referred to it under Part IV of the Environmental Protection Act 1986 (WA) (Act).

This was an appeal lodged by the Conservation Council in relation to a 2018 decision of the Supreme Court of Western Australia. It concerned the proper construction of s.45(6)(a)(ii) of the Act and, in particular, the words ‘otherwise than in accordance with the decision made on the appeal’ in the context of the Minister’s decision that the proposal to develop the Yeelirrie Uranium Project be implemented, subject to certain conditions. The Conservation Council challenged the validity of the Minister’s decision on the basis that it was issued in breach of s.45(6)(a)(ii), because it was issued ‘otherwise than in accordance with’ the Minister’s earlier decision dismissing an appeal from the EPA’s report, which recommended against implementation of the proposal.

Why the EPA’s recommendations are not determinative

The Court of Appeal found that the ‘decision made on the appeal’ in s.45(6)(a)(ii) of the Act refers to the Minister’s decision whether the proposal can be implemented in conformity with the environmental objectives of the Act, having regard to the conclusions and recommendations contained in the EPA’s report. Nevertheless, the Court determined that the Minister’s determination on appeal is separate and distinct from a decision whether or not a proposal should be implemented and, if so, the conditions to which implementation should be subject.

The court found that it would be subversive to the overall scheme of Part IV of the Act to construe the phase ‘in accordance with the decision made on appeal’ as requiring the Minister to decide strictly in accordance with what the Minister determined on appeal. The effect of such a construction would in effect, elevate the EPA’s report from a matter which must be taken into account into a consideration that dictates whether or not a proposal should be implemented.

Buss P and Beech JA, in their joint judgment, found that certain components of the legislative scheme were consistent with their determination that a decision made by the Minister in determining an appeal against a report of the EPA is not the same as a decision whether a proposal should be implemented. These components are:

  • the role of the EPA, in preparing its report, does not involve making a decision on whether or not a proposal should be implemented;
  • the EPA’s report to the Minister must be limited to environmental matters;
  • the power to decide whether a proposal should be allowed does not vest in the Minister exclusively; it must be made by agreement between the Minister and other decision-making authorities (in this case, the Minister for Mines);
  • in contrast to the EPA, the Minister and other decision-making authorities are not confined to environmental matters and can reach their decision by balancing environmental matters with economic, social and other considerations; and
  • s.45 of the Act separately makes provision for the publication of ‘the implementation agreement or decision,’ whereas s.45(6)(a)(ii) is only concerned with decisions on appeals brought against reports from the EPA to the Minister.

Key takeaways – the EPA’s role is advisory

Proponents of energy and resources projects that are referred to the EPA for environmental assessment and recommendation can take comfort from this decision that, while the Minister and other decision-making authorities must take the EPA’s report into account, the Minister is not bound by anything contained in the report when deciding whether a proposal should be implemented and if so, on what conditions.

Given recent criticism of the EPA overstepping its authority with its carbon emissions policy, this decision is important in clarifying the limitations on the role of the EPA in respect of the proposals referred to it for assessment and recommendation under Part IV of the Act. While the EPA is empowered to provide advice to the Minister and other decision-making authorities through provision of a report confined to a consideration of environmental outcomes, its recommendations are not determinative of the final outcome. The Minister, is empowered to make the decision on implementation, and that decision is informed by a significantly broader range of considerations that falls within the EPA’s remit.

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