In respect to the precautionary principle, the Federal Court has previously relied upon decisions of the NSW Land and Environment Court, and in particular, the judgment of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 (‘ Telstra‘). Section 391(1) of the EPBC Act requires the Environment Minister to take account of the precautionary principle in making certain decisions, including a decision as to whether an action is a controlled action, to the extent he or she can do so consistently with the other provisions of the Act. The precautionary principle, under section 391(2) of the EPBC Act, is that ‘ lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage‘. Relevantly, the Foundation claimed that the Minister’s delegate had failed to comply with her obligation under section 391(1) of the EPBC Act to take account of the precautionary principle. This was despite the delegate of the Environment Minister having before her a flora and fauna habitat assessment that recommended certain measures be adopted for the Tasmanian Masked Owl. However, the decision did not require any measures to be taken for a particular threatened species, the Tasmanian Masked Owl. The measures specified in the decision were to be taken by the proponent to avoid significant impacts to various threatened species and ecological communities. The significance of the action not being ‘ controlled‘ was that it did not require assessment and approval by the Environment Minister under the EPBC Act. The delegate had decided that preliminary design and assessment works in relation to a proposed tailing storage facility in western Tasmania were not a ‘ controlled action‘ under the EPBC Act, provided that certain measures were taken to avoid significant environmental impacts. This case was an application by the Bob Brown Foundation to challenge the validity of a decision under the EPBC Act made by a delegate of the Commonwealth Environment Minister. The Federal Court of Australia in Bob Brown Foundation Inc v Minister for the Environment (No 2) FCA 873 has confirmed how the precautionary principle is to be interpreted and applied under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘ EPBC Act‘). Posted on Octoby Liam Mulligan 11 Federal Court confirms interpretation of the precautionary principle Home > infocus > Federal Court confirms interpretation of the precautionary principle
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