The Western Australia State Government has announced that 25 major mining and infrastructure projects are at risk of being considered unlawful. This announcement follows a State Supreme Court decision which held that a failure to manage conflicts of interest had invalidated the approval process of the Western Australia Environmental Protection Agency (EPA).
The Case
The Browse liquefied natural gas (LNG) project was to be constructed in the North West of Australia and estimated to be worth $40 billion AUD. It was a joint venture between a number of companies and was championed by the State Government. The Browse Basin is estimated to contain combined contingent volumes of 15.9 trillion cubic feet of dry gas and 436 million barrels of condensate; however it is also considered to be a pristine and fragile environment and sacred to native title claimants.
In August 2013, the project was brought to a sudden standstill due to the decision in The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307. It was held that that the environmental authorisations which had underpinned the approval of the project were invalid. In assessing the project, a number of members of the EPA board announced conflicts of interests with the project as shareholders in the joint venture companies. They had continued to be involved in the assessment process despite legislative prohibitions and had, therefore, tainted the final decision.
The Response
In response to the decision, the State undertook an urgent audit of the approvals made by EPA to ensure other projects were not similarly affected. Per the Government’s announcement, the results of this audit show that 25 major gas, iron ore and infrastructure projects worth billions of dollars are at risk of being invalidated. This has raised serious alarm bells across major project and mining industries. Proponents are at risk of having projects deemed unlawful for a decision made by the government which they had duly relied on.
As a result, the State Government has drafted retrospective legislation intended to protect projects approved by the EPA from 2002-2012 that may otherwise have been affected by a failure to follow conflict of interest procedure. This move has obviously been welcomed by industry, and the particular companies affected, however it has also seen broad community backlash. Many of the at-risk projects were controversial when approved due to environmental and native title issues. Given that there is a chance the approvals may be invalid, the community has called for the projects to be wholly reassessed. The draft legislation will remove that option, but will still require review and debate by both houses of State Parliament.
