Decision on challenge to Yeelirrie uranium mine approval

The WA Supreme Court of Appeal this week rejected the appeal by the Conservation Council of WA Inc. (CCWA) against dismissal of its judicial review application on the Part IV Environmental Protection Act 1986 (WA) (EP Act) approval of the Yeelirrie uranium mine project proposal (Yeelirrie Proposal).

Significance

The decision is significant for a number of reasons. It provides clarity on the operation of a number of Part IV provisions and the separate nature of:

• the Minister’s decision on an appeal under section 100(d) with respect to the content or recommendation of an EPA report; and
• the subsequent decision-making process under section 45 whether the proposal should be implemented.

Notably, the Court has confirmed that the Minister’s decision on an appeal against an EPA report does not have the effect of determining whether the relevant proposal may or may not be implemented.

Issues

To recap, CCWA challenged the validity of the Yeelirrie Proposal Ministerial Statement. The challenge was made on the basis that the Minister previously dismissed the proponent’s appeal against the EPA’s report which recommended that the Yeelirrie Proposal should not be implemented.

More specifically, CCWA argued that the decision that the Yeelirrie Proposal could be implemented subject to conditions was contrary to section 45(6)(a)(ii) of the EP Act. Under that section, if an appeal with respect to the EPA’s report is lodged, the relevant proposal shall not be implemented ‘otherwise than in accordance with the decision on the appeal’.

Decision

The Court of Appeal rejected CCWA’s interpretation of section 45(6)(a)(ii) and provided the following guidance on the construction of the relevant EP Act provisions:

• There are three stages to the environment impact assessment and approval process under Part IV:
  • Firstly, a proposal is referred to the EPA.
  • Secondly, an environmental impact assessment is conducted by the EPA. This assessment is based solely on environmental factors with recommendations provided as to whether the proposal may be implemented and any relevant conditions and procedures.
  • Lastly, the Minister and other relevant decision-makers consider whether the proposal should be implemented and, if so, subject to what conditions and procedures.
• After the Minister makes a decision on the appeal against an EPA report, the second stage is complete and the third and final stage commences, being the decision on implementation. That third stage is not constrained by any involvement with, nor findings of, the EPA report and its recommendations.
• Neither section 45(6)(a), nor any other provision of the EP Act, render the Minister, in deciding an appeal against an EPA report, effectively the sole decision-maker on the ultimate question of whether a proposal may be implemented.
• The EPA report is prepared for the purpose of environmental impact assessment. When determining an appeal against an EPA report, the Minister is concerned solely with environmental factors. In contrast, the ultimate decision under section 45 as to whether a proposal should be implemented takes into account environmental, as well as economic, commercial, cultural and social factors.
• The ‘decision on the appeal’ referred to in section 45(6)(a)(ii) is whether the EPA report on environmental matters stands unchanged, the proposal is to be remitted to the EPA for further consideration and report, or the EPA’s recommendations are to be varied by changes to the implementation conditions.
• Accordingly, the purpose and effect of the prohibition in section 45(6)(a)(ii) is that, once the appeal on the EPA report is complete, the final stage of the Part IV process involving the ultimate decision as to whether the proposal should be implemented, cannot proceed on a basis that is inconsistent or incompatible with the decision on the appeal regarding the status of the EPA report.

The full decision Conservation Council of WA Inc. v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102 can be found here.

By Melanie Debenham, Senior Associate, Emily Wilson, Senior Associate, and Moshe Phillips, Solicitor, Perth