The matter was called back before the Court for a directions hearing on 25 June 2015, however the Court vacated the hearing and made consent orders adjourning the matter once again. The case is set down for a further directions hearing at 9.30 am on 5 November 2015, at which point the most recent proposal for dredging and onshore disposal of dredge spoil on the Terminal 2 site may have been decided by the Minister.
In essence, this case is a direct challenge by the Mackay Conservation Group (MCG) to the approval and conditions Minister Hunt placed on the controversial dredging at Abbot Point.
North Queensland Bulk Ports Corporation Limited (NQBP) applied for Minister Hunt’s approval under theEnvironment Protection and Biodiversity Protection Act 1999 (Cth) (EPBC Act) to undertake a program of dredging and dumping near Abbot Point to facilitate development of three new proposed port terminals: Terminal 0, Terminal 2 and Terminal 3. These terminals are being developed to increase the capacity of the Port of Abbot Point to export coal from proposed coal mines in the Galilee Basin. The planned mines, rail infrastructure and coal ports are being developed by mining companies including Adani Enterprises, GVK Hancock, and Waratah Coal.
The project proposes to dredge 3,000,000 m3 of seabed near Abbot Point, destroying 180 hectares of seagrass and to dump the dredged material approximately 24 km offshore from Abbot Point in the Great Barrier Reef Marine Park. Approval was given by the Minister on 10 December 2013. The approval decision is available here.
MCG, represented by EDO Qld lawyers, is challenging this decision in the Federal Court under theAdministrative Decisions (Judicial Review) Act 1977 (Cth). It is claiming there were a number of alleged errors of law in Minister Hunt’s EPBC Act approval. Of particular importance to the case are the requirements unders137 of the EPBC Act, that the Minister’s decision cannot be inconsistent with the World Heritage Convention(Convention) or the Australian World Heritage Management Principles (Principles). Among the many potential grounds of review identified in relation to the decision is that the Minister’s decision is unlawful because it is inconsistent with the Convention and the Principles, and it was premised on an erroneous construction of the requirements of s137.
In short, this case will require the Court, for the first time since the EPBC Act came into force in July 2000, to consider how the Convention and the Principles affect the Minister’s decision making powers in relation to Australia’s World Heritage properties. The case is expected to be of interest to members of the World Heritage Committee because it is the EPBC Act which enshrines the requirements of the World Heritage Convention in law in Australia.
At the first directions hearing on Friday 2 May 2014, the Court ordered that NQBP be joined as a party to the proceedings. Monday 21 July 2014, EDO Qld Solicitors, for the Mackay Conservation Group, filed in Court:
Documents obtained under Freedom of Information;
A report on water quality and offsetting issues by Scientist Jon Brodie
A report on the hydrodynamic modelling and dredge and disposal plume issues by Engineer Brett Miller
A report on climate change issues prepared by Professor Michael Raupach; and
A report on climate change impacts on the Great Barrier Reef by Professor Ove Hoegh-Guldberg
On 25 September the Federal Court agreed to adjourn the hearing. The hearing dates were abandoned, and the matter was set down for review on 31 October. EDO Qld, on behalf of MCG, was successful in arguing for adjournment due to the uncertainty created by consideration of land based disposal methods – as this could substantially change the nature of the case.
NOTE: NQBP required separate approvals for the dumping of dredge material under the Environment Protection (Sea Dumping) Act 1981 (Cth)) and for carrying out dumping activities in the GBR Marine Park (under the Great Barrier Reef Marine Park Act 1975 (Cth)). These were both granted on 31 January 2014. The approval under the Sea Dumping Act is the subject of a current separate action in the Administrative Appeals Tribunal, being taken by North Queensland Conservation Council. Read more…