Suite 4, Woods Building

544 Hay Street, Perth WA 6000

Ph (08) 9221 3030,
3030 FX (08) 9221 3070
Country WA 1800 175 542
www.edowa.org.au
edowa@edowa.org.au

15 March 2011

Decision Exposes Flaws in the Strategic Assessment Process

The Supreme Court of WA today dismissed law boss Joseph Roe’s challenge to clearing on James
Price Point, the site of the proposed Kimberley Gas Hub.

Mr Roe’s solicitor, Josie Walker of the Environmental Defender’s

Defender Office, said that this decision
shows that the Strategic
rategic Assessment procedure followed for the Gas Hub lacks environmental
rigour, because apparently no one is restrained from commencing works on the proposed gas plant
before a decision is made.

The Supreme Court found that it was legal for the Department of Environment and Conservation to
grant clearing permits to Woodside and the Department of Main Roads for works connected with
the proposed Gas Hub,, even though the WA and Commonwealth Ministers for Environment are yet
to decide
de whether the project should be approved.

The Court accepted the State’ss argument in this case that as yet no one has formulated a proposal to
build anything on James Price Point.
Point The State characterised the Gas Hub proposal as merely a “site
selection” exercise. This will come as a shock to objectors who are grappling with the State’s 1,500
page Strategic Assessment Report outlining the potential impacts
im of the Gas Hub,
Hub and to native title
claimants who have been served with notices threatening compulsory acquisition of the land.

The principal issue in the case was whether the Department of Environment and Conservation could
grant a clearing permit before the EPA had completed its assessment of the proposal under the
Environmental Protection Act. The granting of related permits is prohibited under the Act if the
proposal is a “significant proposal”.
proposal” A “significant proposal” is defined as a proposal which is
likely to have a significant effect on the environment.

The applicant argued that the Gas Hub proposal had clearly become a “significant proposal” by the
time the clearing permits were granted.
granted There was no doubt that it was going to be a high-impact
high
development. Further, many details of the development had been finalised by this date, including
the location at James Price Point, the site layout, production specifications and even an outline of
the construction sequence.

However, the Court found that at the relevant date the State’s proposal was still only a “strategic
proposal”, because the proposal was in essence a proposal for land-use planning at James Price
Point, rather than an actual development proposal. The Court said that no environmental impacts
would result from the Gas Hub proposal currently being assessed, but rather any impacts would be
the result of later project approvals which would need to be submitted for elements of the Gas Hub.

A second legal point raised by Mr Roe’s lawyers was whether the Department had failed to properly
notify Mr Roe of the lodgement of the permit application by the Department of Main Roads. The
Court held that the Department had adequately notified Mr Roe by notifying his native title
representative body, the Kimberley Land Council, even though the KLC had failed to pass this
information on to Mr Roe until after the permit was granted.

EDO Principal Solicitor, Josie Walker said:

“The Court has found that the clearing permits were legal because the State has not yet put forward
a concrete proposal for anything to be built on James Price Point.

“This decision exposes an apparent anomaly in the assessment regime whereby the further a project
is from receiving final approval, the less legal limitations there are on pre-emptive works being
carried out which may cause substantial damage to the environment in their own right.

“The Court has declared that the Department’s actions were legally permissible, however it is
irresponsible for the government to allow clearing when no decision has been made on whether the
proposal as a whole should go ahead.”

Mr Roe is considering whether to appeal to the High Court.

Contact: Josie Walker, Principal Solicitor, Ph 9221 3030

Environmental Defender’s Office Western Australia (Inc) Page 2 of 2