Tasmanian Conservation Trust Inc v Minister for Resources and Gunns Ltd

January 1995

EDO NSW acted for the Tasmanian Conservation Trust challenging a woodchip export licence granted by the Minister for Resources to Gunns Ltd on 10 June 1994.

The Minister advised that he had also granted "in principle" approval to allow Gunns to export up to 200 000 tonnes of hardwood chips until the end of 1999, subject to the issue of annual export licences. The Minister followed departmental advice that he did not need to designate Gunns under the Environment Protection (Impact of Proposals) Act 1974 as the export proposal did not raise any issues of environmental significance not already taken into account under an earlier EIS on the Tasmanian woodchip industry conducted in 1984.

A key issue which needed to be decided was the question of standing. In order to approach the Court, the Trust needed to be a "person aggrieved" under the Administrative Decisions Judicial Review Act. The Court found that the Trust did have standing, refering to a number of key factors that supported this finding.

The next question was whether the Minister had complied with the law. The Court held that the Minister had not addressed his mind to the issue of whether the proposed action would effect the environment to a significant extent. He had asked himself the wrong question, and only whether the environmental impact of the proposed action was substantially different from that of proposals previously assessed in preparing the 1985 EIS.

The case also challenged the in principle approval. The Court held that the in principle approval was not a decision which the Export Control (Unprocessed Wood) Regulations required or authorised. His Honour held that Gunns may have a legitimate expectation that a licence would not be denied on other grounds and Gunns would be entitled to procedural fairness because of that expectation. However this would not create any other entitlement in Gunns.

Although a loss for the Trust on this point, it was crucial that it be determined. It proves that woodchipping companies in Australia would have no entitlement to compensation if these licences were not renewed.

On 19 December 1994, the Minister for Resources issued a fresh licence for 1995 to Gunns Ltd, prior to the handing down of this judgement. EDO NSW represented the Trust in a fresh challenge to this new licence, on substantially the same grounds.

EDO NSW is grateful to barristers Mr J. Basten QC and Mr N. Williams for their assistance in this matter.

Judgment