The recent Federal Court decision of Jam Land Pty Ltd v Minister for the Environment [2022] FCA 1058 gave rise to an issue regarding whether the listing of 'Natural Temperate Grassland of the South Eastern Highlands of New South Wales and Australian Capital Territory' (NTG-SEH) was described with sufficient certainty to make the listing valid. This decision will likely have implications for the interpretation of other listings. For example, the recent listing of Koala as 'endangered' rather than 'vulnerable', refers to the 'koala (combined populations of Queensland, New South Wales and the Australian Capital territory)'.
NTG-SEH was listed as 'critically endangered' in 2016. A conservation advice was approved by the Federal Environment Minister (Minister) at that time which includes a description of the NTG-SEH ecological community.
In April 2020, a delegate of the Minister issued Jam Land Pty Ltd (Jam Land) a remediation determination under section 480D(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) asserting that Jam Land unlawfully cleared NTG-SEH on its property in Corrowong by spraying herbicide on lots that contained NTG-SEH. The total amount removed was 'between 0 and 28.5 hectares', and the clearing was said to have a 'significant impact on the wider NTG-SEH ecological community'. The determination required Jam Land to mitigate the damage caused.
Following an unsuccessful application to the Minister to reconsider the determination, Jam Land applied to judicially review the determinations. In doing so, Jam Land asserted that 'NTG-SEH was not validly listed as a threatened ecological community' because the 2016 instrument that listed NTG-SEH did 'not identify the community the subject of the listing with "sufficient certainty and precision"'. Jam Land also claimed, among other things, that the Minister unlawfully took into account the conservation advice, and that the action required to repair or mitigate the damage had not been specified precisely enough.
The listing was valid despite 'some degree of vagueness and imprecision'
The Court concluded that the listing was valid. In doing so, the Court noted that there was nothing that required a full description of the ecological community to appear in the instrument that amended the listing (at [55]).
The statutory regime also contemplated an approved conservation advice being prepared that would contain a more detailed description of the relevant community. As such, a precise description of the relevant ecological community did not need to be apparent from the list itself and the question of whether the listing is sufficiently certain could be answered by reference to both the listing, the approved conservation advice and other relevant extrinsic materials (at [60]).
The Court also stated:
'Further, and in support of the Minister's position, [the decision of] VAW (Kurri Kurri) recognised that a degree of 'vagueness and imprecision' in the definition of such a community is inevitable. The Approved Conservation Advice itself makes this point: see for example, at p 4(1.2). Although there might be more apposite metaphors, as I said at the hearing, a grassland community is a moveable feast. Such imprecision must be tolerated if the object of the EPBC Act, namely, per s 3(1)(a), protecting vulnerable and changing ecological communities, is to be achieved.'
Other interesting comments from the Court
Jam Land argued that the delegates of the Minister gave inappropriate weight to the approved conservation advice when issuing the determinations. This ground was rejected by the Court. The Court noted that section 480J(3) of the EPBC Act allowed the Minister to 'take account of information and comments from any source the Minister considers appropriate' when reconsidering a determination. The delegates of the Minister could therefore also consider the approved conservation advice when identifying an ecological community [at [70]-[71]).
Jam Land also argued that the determination was invalid because it did not clearly specify the impugned action and what was required to mitigate the damage as required by section 480E of the EPBC Act. In particular, Jam Land asserted that the phrase 'up to 28.5 hectares' was unclear. The Court also rejected this ground, noting that 'some degree of vagueness and imprecision is to be expected in cases of this kind' and that the determination allowing Jam Land to submit a mitigation management plan to the Minister for approval.
Implications for other listings
In February 2022, the EPBC Act Listing Status for the Koala (combined populations of Queensland, New South Wales and the Australian Capital Territory) was changed from 'vulnerable' to 'endangered'. The instrument that introduced that amendment was expressed in similarly broad terms to that of the NTG-SHE listing in 2016. This has been the way the koala listing has been described since 2012.
The decision in Jam Land Pty Ltd v Minister for the Environment [2022] FCA 1058 confirms that any challenge to the Koala listing on the basis of uncertainty or imprecision will be difficult to make out. Additionally, regard can be had to the approved conservation advice when determining the relevant geographical area affected by the listing.
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