NWTAS for Clean Oceans Inc v Minister for Environment and Water & Others

Federal Court of Australia | TAD68/2025

Macquarie Harbour on the west coast of Tasmania is home to the only known population of the endangered Maugean skate. Salmon farming has operated in the harbour for many years and has been the subject of ongoing scientific and public concern because of its impacts on water quality and the skate’s survival.

On 20 November 2025, NWTAS for Clean Oceans Inc filed a judicial review application in the Federal Court of Australia, challenging the Minister for Environment and Water’s decision to confirm a 2012 decision that the expansion of marine farming operations in Macquarie Harbour is not a “controlled action” if undertaken in a particular manner.

On 10 March 2026, the Federal Court allowed the three companies undertaking marine farming operations in Macquarie Harbour to join the proceedings as respondents: Huon Aquaculture Company Pty Ltd, Petuna Aquaculture Pty Ltd and Tassal Operations Pty Ltd.

NWTAS for Clean Oceans Inc is a community group based in northwest Tasmania, advocating for the protection and preservation of Tasmania’s marine environment.

Background to the claim

Under Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), a person proposing to take an action that is likely to have a significant impact on a matter of national environmental significance must refer that action to the Minister for Environment. The Minister may decide that the action is a “controlled action”, requiring assessment and approval under the EPBC Act, or that it is “not a controlled action if undertaken in a particular manner” (NCA-PM). Where the Minister decides an action is NCA-PM, the action may proceed without further assessment under the EPBC Act, provided it is carried out in accordance with the specified manner.

In 2012, the then Minister decided that the expansion of marine farming operations in Macquarie Harbour was NCA-PM. As a result, the expansion did not require further assessment or approval under the EPBC Act.

The EPBC Act also enables the Minister to reconsider a decision when substantial new information becomes available, or when there is a substantial change in circumstances.

In 2023, three civil society organisations requested that the Minister reconsider the 2012 NCA-PM decision on the basis that significant new scientific information was available about the status of the endangered Maugean skate and the impacts of salmon farming on its survival in Macquarie Harbour.

While the reconsideration process was underway, Parliament amended the EPBC Act by inserting section 78(3A). The amendment provides that the Minister must not revoke the original decision that an action is NCA-PM if the action meets certain criteria. Those criteria include that the activity must have been ongoing or recurring for a 5-year period before the time the Minister was requested to reconsider the decision.

Applying section 78(3A), in August 2025 the Minister concluded that he was legally prevented from revoking the 2012 NCA-PM decision and therefore confirmed that decision.

What the claim alleges

NWTAS for Clean Oceans Inc’s claim alleges that: 

1. The Minister applied the wrong test in considering whether section 78(3A) of the EPBC Act applied to the action the subject of his decision. In particular, NWTAS for Clean Oceans Inc alleges that the Minister adopted a test not supported by the statutory text, failed to construe the provision consistently with the purpose of the EPBC Act’s reconsideration process, and wrongly disregarded operational changes made in response to new regulatory requirements intended to protect the endangered Maugean skate.
2. The Minister’s decision was based on reasoning that was irrational. Although the Minister accepted that changes had occurred in the way the marine farming operations were being carried out, he concluded that the action remained “ongoing”. NWTAS for Clean Oceans Inc alleges that this conclusion was internally inconsistent and lacked a rational basis, particularly because the Minister excluded certain operational changes from his assessment without justification.
   
3. The Minister failed to consider material in his possession that was relevant to the decision, including draft departmental advice concerning the reconsideration of the decision. NWTAS for Clean Oceans Inc alleges that this material was relevant to matters including the impacts of salmon farming operations on the endangered Maugean skate and changes to the way the action had been carried out, but was not properly considered by the Minister.
4. The Minister erred in finding that section 78(3A) of the EPBC Act applied because the factual preconditions for that provision were not satisfied. NWTAS for Clean Oceans Inc alleges that changes to the marine farming operations meant that the way the action was being undertaken had not been ongoing or recurring for the required five-year period before the reconsideration requests were made.

A copy of the Originating Application is available on the Online File here.

Remedy sought

NWTAS for Clean Oceans Inc seeks orders quashing the Minister’s decision, a direction requiring the Minister to reconsider the requests according to law, and a declaration that section 78(3A) of the EPBC Act does not apply to the relevant action.

First case management hearing

The first case management hearing took place on 11 February 2026. The Minister was ordered to serve NWTAS for Clean Oceans Inc with a number of documents, including a copy of the Departmental brief and draft Departmental advice provided to the Minister in relation to the decision under review. 

Other procedural steps

On 10 March 2026, the Court joined Huon Aquaculture Company Pty Ltd, Petuna Aquaculture Pty Ltd, and Tassal Operations Pty Ltd as respondents to the proceedings. 

The parties filed a Statement of Agreed Facts on 8 July 2026. 

The orders made in the proceedings can be viewed here.

The legal team

NWTAS for Clean Oceans Inc is represented by Equity Generation Lawyers (and was formerly represented by Bleyer Lawyers at an earlier stage in the proceedings).

NWTAS for Clean Oceans Inc’s counsel are Juliet Forsyth SC, Barnaby Chessell SC and Adam McBeth.