Gunns Limited (“Gunns”) proposes to build and operate a pulp mill at Bell Bay in Tasmania. When the mill is operative effluent from the production process is to be discharged into Bass Strait. Such discharge may have an adverse effect on an area of Bass Strait which forms part of the Commonwealth marine environment. In order to undertake the construction of the mill Gunns must first obtained the approval of the Minister for the Environment, Heritage and the Arts (“the Minister”) under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”). The Minister gave his approval on 4 October 2007.

• Lawyers for Forests “LFF” seeks review of the decision.

• 2 April 2007: Gunns made a referral to the Minister, relating to its proposed pulp mill

• 2 May 2007: the Minister determined the referral be to a 'Controlled Action' operating within a Commonwealth Marine environment (s23 and s24A of the EPBC Act).

• 10 August 2007: Minister invited the Chief Scientist of Australia to review the report

* 17 August 2007: The Minister's Department prepared a report recommending approval of Pulp mills subject subject to certain conditions.

• 24 September 2007: Chief Scientist of Australia agreed with the recommendations of the Minister's Department.

• 4 October 2007: Minister determined to grant final approval to the proposal subject to a range of conditions.

LFF sought the court to rule the Minister's decision for approve the Gunn's pulp mill on several grounds of administrative law. They proposed that the Minister's decision to impose conditions upon the Gunns to gather information via monitoring and testing of water into which the effluent would be discharged into amounts shows that the Minister made an uninformed decision resulting from lack of scientific knowledge.

1st ground: s134(1) of the EPBC Act

Section 134(1) enables the Minister to impose conditions to an approved action for the purposes of its protection, repair and mitigation of damages. LFF argued that some of the conditions imposed by the Minister were for the purpose of obtaining knowledge of the impact of the discharge of effluent. Therefore, due to the use incorrect purpose, the conditions became invalid.

The court rejected the argument stating that due to the absence of material that would give the Minister absolute certainty for him to impose limits, the conditions of obtaining knowledge, would enable continue monitoring and adjustment of the limits currently set, thus enabling better protection of the environment into with the effluent would be discharged.

2nd ground: Precautionary principle

The precautionary principle promotes the adoption of strategies to protect and preserve environments and habitats in the absence of definitive scientific evidence regarding specific threats posed (in this case, the safe level of effluent that can be discharged into the Tasmania coast). The LFF argued that the Minister did not adopt the precautionary principle in setting the limits effluent discharge.

The Ministerial approval of the pulp mill was based upon the recommendations from the Department of Environment, Heritage and the Arts. The court found that the recommendation was compiled using the precautionary principle as it proposed for the Minister to impose conditions to protect the environment. Therefore, in the absence of scientific certainty with regards to the potential impacts of the effluent discharge on the Commonwealth marine environment, precautionary steps were taken by the Minister in imposing the conditions upon Gunn's.

3rd ground: Absence of information for Minister to make an informed decision

LFF proposed that the conditions to monitor and obtain more information showed that the decision of the Minister was uninformed and therefore invalid. Instead of making the decision and then imposing the conditions, LFF suggested that what the Minister should have done is invoked s 132 of the EPBC Act, which empowers the Minister to request further information before granting approval to the pulp mill project.

The court rejected this ground. S132 states the Minister has the discretion to request for information if he believes that there is insufficient information to grant approval. The court held that at no point did the Minister indicate that there was insufficient information available before him. It was held that the recommendation report from the Minister's Department coupled with the Chief Scientist of Australia's report was sufficient information for the Minister to make his decision.

4th ground: Unreasonableness

It was argued by the LFF that by setting the limits of effluent discharge in the conditions of approval, there won't be any variations to those limits even if changes were found to be necessary following the tests, studies and monitoring which Gunns is required to conduct.

The court referred to s143(1) of the EPBC Act which allows for the Minister to vary the limits imposed by the conditions if he is satisfied that the impact of the discharge on the environment has been substantially greater than had previously been identified.

Held: Application by LFF was rejected on all grounds. The Ministerial approval of the Gunns pulp mill stands.

• The full decision of 9 April 2009 is available on Austlii

• The full decision of 8 May 2009 is available on Austlii

• Lawyers for Forests - Information on the Pulp Mill Legal Challenge