Judgment Delivery - Transcript of Video
Lansen v Minister for Environment and Heritage  FCA 903
13 JUNE 2008
[Wide view of court room, zooms in on Justice Mansfield sitting at bench]
Justice Mansfield: I have been asked to publish a summary of the reasons for judgment which I propose to publish in a moment and I shall do that.
The applicants are seven native title claim groups with native title claims under the Native Title Act 1993 (Cth) over land in the vicinity of the McArthur River Mine near Borroloola in the Gulf Region of the Northern Territory.
The operator of that mine, the McArthur River Mines (MRM) proposes to alter its operations from an underground mine to an open pit mine. That will require a significant diversion of the McArthur River.
On 4 March 2003, the Minister for the Environment and Heritage found that proposal to be a “controlled action” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Hence it required his approval. The Minister’s concerns particularly related to the impact of the proposal upon migratory bird species by its effect upon the flow and delta of the McArthur River, and upon the endangered species called the freshwater sawfish by affecting its habitats and its capacity to migrate up and down the river.
Before the approval, the potential environmental impacts of the proposal were to be assessed and the results of the assessment reported to the Minister. The assessment process was undertaken through the Northern Territory Minister for the Environment and Heritage in accordance with a Bilateral Agreement between the Commonwealth and the Northern Territory which came into force on 19 March 2003. The assessment process involved the preparation of an environmental impact statement, its exposure to public comments, and MRM’s response to the public comments. The results of that process were conveyed to the Commonwealth Minister by the Northern Territory Minister on 25 February 2006 by an Assessment Report. The Minister then asked for further information from MRM concerning the potential impacts of the proposal on the freshwater sawfish and upon migratory bird species and how those impacts might be better minimised and monitored.
After receiving the response, the Minister decided to approve the proposed action subject to a number of conditions.
The applicants have challenged the validity of that decision on four main grounds:
The Court has concluded that:
As the contentions of the applicants failed to show that the Minister’s decision is invalid, the Court proposes to dismiss the application. I publish my reasons.
Included in the reasons is an order giving the applicants leave to amend the further amended application in terms of the document entitled Second Further Amended Application for an Order of Review, dated 18 February 2008 and attached to the document entitled Submission on Additional Issues filed by the applicants on that date.
I have made an order that the application be dismissed but I propose to make that subject to any submissions that Mr Glacken wishes to make because I did indicate that if there were issues about the orders I would give the parties an opportunity to consider them. I have not dealt with the question of costs or any other matters. You may wish to deal with them now, you may like a little time to consider them or you may have reached some agreement about other matters including costs.
[Barrister speaks (12 seconds) – inaudible]
Justice Mansfield: Yes, a summary necessarily is an abridgement and not necessarily an utterly accurate report of what’s in the judgment.
[Barrister speaks (10 seconds) – inaudible]
Justice Mansfield: Yes, alright.
Barrister: And as to costs I have discussed with Mr Hansen … [inaudible]
Justice Mansfield: Alright, well I have another matter commencing, an interlocutory matter commencing at 10.15 am and I am sure that can be interrupted or I can list this matter say at 11.15 am if that’s convenient to the parties and I’ll interrupt that hearing just for a few moments. And because I will not be robed can I indicate that probably at 11.15 am there is no need to robe unless it’s more convenient for the counsel here.
Mr Glacken the other order which I have included is an order formally dismissing the application. I can’t see how that should not be now made so I will maintain that order as set out in the orders in the published Reasons.
[Barrister speaks (12 seconds) – inaudible]
Justice Mansfield: Yes, alright, well I’ve published the Reasons. I’ll make the Orders which I set out in the Reasons. I’ll adjourn the matter to 11.15 am to consider whether there are any other orders which any other party seeks to make and by then you can probably have an agreed timetable for the exchange of written submissions about costs. Thank you.
I will adjourn the Court until 10.15 am.
[Judge rises and bows]
Court Officer: All stand. This Court is now adjourned.
[Judge turns and walks out of courtroom]