In the recent case of Buzzacott v. Minister for Sustainability, Environment, Water, Population and Communities (No. 2)  FCA 403 a single judge of the Federal Court considered a challenge to the approval granted under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) for the proposed expansion of BHP Billiton’s Olympic Dam uranium mine in South Australia. The challenge encompassed the decision to approve the action as well as the conditions imposed on the action:
The primary argument advanced was that the conditions of approval left so much of the proposal comprising the approved action to be defined by future plans and studies that the approval was an improper exercise of power in that the exercise of the power to approve the action was uncertain. The Court applied the test from Lawyers for Forests to conclude that the conditions in question were sufficiently certain on the basis that they made it reasonably clear to the proponent what it was required to do.
Importantly, in paragraph 58 the Court recognised that s134(3)(f) of the EPBC Act authorised conditions designed to implement an adaptive management approach, saying:
“there are always risks to the environment, particularly with major developments, and that conditions or circumstances change and the operation of an approved action needs to recognise the risks and changing circumstances and adapt to them.”
The second ground of challenge was that the Minister failed to have regard to a relevant consideration, being the impact on the environment of the aboveground storage of radioactive mine tailings, in that the Minister had only considered impacts associated with the first 10,000 years of storage. The court found on the evidence that the Minister had in fact considered the long terms effects of long term tailings storage.
The Applicant asserted that the Minister failed to have regard to the impact the action would have on the environment outside of Australia due to the export of uranium. While determining that the word ‘environment’ in the EPBC Act should be interpreted to mean the environment within Australia, the Court held nonetheless that the Minister did have regard to the impacts of the export of uranium on the broader environment.
A similar conclusion in relation to Queensland legislation was recently reached by the Queensland Land Court in Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management  QLC 013.
The Applicant argued that the Minister failed to have regard to the continued extraction of groundwater from the Great Artesian Basin in deciding the application, on the basis that such continued extraction was not part of the action.
The Court found it unnecessary to consider whether the extraction of water from the GAB was part of the action or whether it should otherwise have been considered, on the basis that it found the Minister had in fact considered such impacts.
This case is significant in relation to the scope of the conditioning power under the EPBC Act. Conditions that might appear to lack finality but realistically are part of an adaptive management approach to resolving uncertainty can be legitimately imposed under the EPBC Act.
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