Lansen v Minister for Environment and Heritage [2008] FCAFC 189

Year: 
2008
Jurisdiction: 
Northern Territory
Forum: 
Federal Court
Legislation considered: 
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

This was a decision of the Full Court of the Federal Court of Australia. The applicants were several Native Title Claim Groups with Native Title determination applications. This application was for approval of "controlled action" under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). One issue was whether assessment of the proposal was properly made under a Bilateral Agreement between Commonwealth and Northern Territory when the Bilateral Agreement came into force after the decision of Minister to deem the proposal a controlled action. The Court considered whether assessment of the proposal should have been made under Part 8 of EPBC Act and whether the primary judge was correct in holding that the assessment of proposal was properly made under the Bilateral Agreement.

A further issue was whether the pre-condition to the grant of approval under Part 9 of the EPBC Act was satisfied where the Minister received a report that there was not enough information and, secondly, whether the Minister received an assessment report as required by s 133. The Court considered whether the primary judge was correct in concluding that there was an assessment report in existence within the meaning of s 133 of the EPBC Act. The Court considered whether the Minister breached s 134(4)(a) of the EPBC Act and whether any breach of s 134(4)(a) rendered the approval invalid. Whether the primary judge erred in concluding that any breach of s 134(4)(a) did not render the Minister's decision invalid was considered. The final issue was whether the appellants should be permitted to raise an issue not argued before the primary judge. The order of the primary judge was set aside and an order made that the application for approval be remitted to the Minister for further consideration according to law.