Federal Court decides on Alpine grazing trial

Last Friday the Federal Court added its voice to the continuing alpine grazing saga – it handed down its decision on whether Federal Environment Minister Tony Burke’s rejection of the trial was valid.  Justice Susan Kenny of the Federal Court found that it most definitely was.

You can access a full copy of her decision decision here.

So, how did alpine grazing end up in the Federal Court?

In 2011, the Victorian Government followed through on an election promise by reinstating cattle grazing in the Alpine National Park.  Cattle grazing had been banned from the Park since 2005, because of grazing’s impacts on the vulnerable and unique ecology of the Park.  The Victorian Government tried to justify the reinstatement of grazing by calling it a ‘scientific research trial’ to determine whether cattle grazing reduces bushfire risk.  The grazing commenced in January 2011, and lasted until April 2011, and at no point during this period did the State Government seek Minister Burke’s approval, as it was clearly required to do by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  Eventually Minister Burke demanded that the State Government cease the trial until it had obtained his approval – it was at this point that the State Government ended the trial for the season.

In December 2011, the Victorian Government proposed to recommence grazing again, and this time asked for Minister Tony Burke’s approval.  Minister Burke responded quickly, and firmly: he decided that the trial would have a “clearly unacceptable” impact on the Alpine National Parks’ ecological values, and its aesthetic and recreational values.

The Victorian Government refused to back down, and challenged this decision in the Federal Court.

In her decision released last Friday, the Justice Kenny found that Minister Burke’s decision was completely valid, and that the Victorian Government’s challenge failed on all counts.

What were the Federal Court’s reasons?

The Victorian Government’s challenge always warranted scepticism.  As the EDO has previously emphasised, including in a letter on behalf of the Victorian National Parks Association Inc (VNPA) to Minister Burke, the alpine grazing trial is inconsistent with Federal environmental laws. Minister Burke’s eventual decision refusing approval was therefore entirely appropriate.

The Federal Court’s decision reinforced this argument.

During the proceedings, the Victorian Government tried to argue that Minister Burke’s decision refusing the trial was invalid because he had made his decision on the basis of advice from his Department, and on the basis of publicly available scientific reports that pointed out the damaging effects of alpine grazing.  The Victorian Government believed that the Minister was only entitled to base his decision on the materials it had provided to the Minister.  The Federal Court rejected this.  It found that not only was it permissible for Minister Bourke to draw on his Department’s expertise, which included the scientific reports, but that to prevent the Minister doing so would clearly result in worse environmental decisions, which was contrary to the intentions of the EPBC Act.

This is a good decision.  As the Court noted, the Victorian Government’s argument would make the Minister entirely dependent on the Victorian Government giving him the information necessary to make a good decision. Given the Victorian Government’s refusal in 2011 to give the Minister any information about the trial, and our own experiences obtaining information about the trial from the Victorian Government on behalf of the VNPA (which involved a protracted VCAT battle, that we eventually won), the Victorian Government is not very reliable in this respect.

Indeed, we should expect that environmental laws protect the environment by making sure Government decisions about whether potentially damaging projects should go ahead or not are based on good information and relevant expertise – to achieve this, decisions by Ministers, as public office holders, should draw on the knowledge and expertise of their Departments.

The Victorian Government also argued that Minister Burke had denied them a fair hearing, because he had not given them an opportunity to respond to the advice and reports he relied on.  The Court also rejected this argument.  It found that the Victorian Government had a clear avenue open to it to question the reports – it could apply for reconsideration of the Minister’s decision under the EPBC Act.

What next?

This second point may indicate what happens next.

Under the EPBC Act, it is open to the Victorian Government to request that the Minister Burke reconsider his decision.  Indeed, this option has always been open to the Victorian Government.  Alternatively, the Victorian Government could redesign, and resubmit its proposal to Minister Burke for approval.  The Victorian Government could also seek to appeal the Federal Court’s decision.

Given the Minister’s clear decision, now confirmed as valid by the Federal Court, that the alpine grazing trial is “clearly unacceptable” (a position put forward in 2011 by environmental groups and scientists across Victoria), it would seem to be now abundantly clear that any project that damages the ecological values of the Alpine National Park is inconsistent with our environmental laws, and that further attempts by the Victorian Government to carry out the trial are a waste of time and expense. But you never know!

The Victorian Government could finally simply withdraw the proposal, and take no further action in relation to the trial.  This would seem to be by far the most sensible, and responsible, course of action.

The more immediate issue at hand for the Victorian Goverment is the cost: the parties have 14 days to hand up submissions about who should pay the costs of the proceedings.  As the losing side, it is most likely that the Victorian Government will be ordered to pay Minister Burke’s legal costs.  Such an order would only add to the Victorian Government’s already lengthy bill for fulfilling its election promise to ignore state and national environmental protections, and return grazing to the Alpine National Park.

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