¹ For an analysis of some of the environmental law and policy issues which have arisen with respect the Great Barrier Reef area see Paul, Havemann et al, ‘Traditional use of marine resources agreements and dugong hunting in the Great Barrier Reef World Heritage Area’ (2005) 22 Environmental and Planning Law Journal 258Google Scholar; Peter, Wulf, ‘Diffuse land-based pollution and the Great Barrier Reef World Heritage Area: the Commonwealth's responsibilities and implications for the Queensland sugar industry’ (2004) 21 Environmental and Planning Law Journal 424Google Scholar.

² Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty Ltd (Party Joined) [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) ('Connolly No 2’).

³ Airwork also applied to the Queensland Environmental Protection Agency for a permit to conduct its business in the State marine park that abuts the Marine Park. A permit is required under the Marine Parks Act 2004 (Qld) and the Marine Parks Regulation 2006 (Qld). A joint permit was issued simultaneously with the permit from GBRMPA.

⁴ Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty Ltd (Party Joined) [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [1] ('Connolly No 1’). An excellent map of Magnetic Island, depicting the various bays and associated features can be found via Google Maps Australia at <http://maps.google.com.au/maps?hl=en&tab=wl> at 24 February 2009.

⁵ Great Barrier Reef Marine Park Regulations 1983 (Cth).

⁶ The Zoning Plan creates a number of zones. Each zone specifies activities for which GBRMPA's permission is or is not required.

⁷ Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [33–4].

⁸ Ibid [1].

⁹ Under regulation 185 of the Great Barrier Reef Marine Park Regulations 1983 (Cth) a person may request a reconsideration of a decision, including a decision to vary a permit.

¹⁰ Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [34].

¹¹ Ibid.

¹² Ibid [123].

¹³ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [8].

¹⁴ Ibid [16].

¹⁵ Ibid. GBRMPA had asserted that Horseshoe Bay was within the Marine Park area up to the limit of the low water mark, and that the area between the high water and low water mark was within the confines of State marine park, in this instance the Magnetic Island National Park: Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [6].

¹⁶ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [9]. As noted above, under sections 32 and 36 of the Great Barrier Reef Marine Park Act 1975 (Cth) and regulation 77 of the Regulations, Airwork required a permit to conduct a tourist and aircraft operation in the waters surrounding Magnetic Island within the Marine Park.

¹⁷ See for example the decision in North Queensland Conservation Council and Great Barrier Reef Park Authority and Ors [2000] AATA 925 (Unreported, Forgie DP and Christie M, 20 October 2000) where the Tribunal considered a matter relating to Nelly Bay, Magnetic Island, and the granting of certain permissions by GBRMPA.

¹⁸ Section 43(1) provides that the AAT, in making its decision, has all the powers of the original decision maker. It is equally constrained to the powers and jurisdictions of that decision maker. Hence, here, having found that GBRMPA did not have power to regulate activities in Horseshoe Bay, the AAT similarly was unable to make a decision with respect to the operation of the seaplane business in Horseshoe Bay.

¹⁹ Great Barrier Reef Marine Park Act 1975 (Cth) s 30.

²⁰ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [9].

²¹ For further details see Great Barrier Reef Marine Park Authority, Great Barrier Reef Marine Park Zoning Plan 2003) <www.gbrmpa.gov.au/__data/assets/pdf_file/0016/10591/(Zoning_Plan.pdf> at 28 July 2008.

²² Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [10].

²³ Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964).

²⁴ Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964).

²⁵ See the extensive discussion of the position prior to 1973 in D P, O'Connell, ‘Australian Coastal Jurisdiction’ in D P, O'Connell (ed), International Law in Australia (1965) 246–91Google Scholar.

²⁶ (1975) 135 CLR 337 ('Seas and Submerged Lands Case’).

²⁷ See the post-Seas and Submerged Lands Act 1973 (Cth) position as outlined in Michael, Landale and Henry, Burmester, ‘Australia and the Law of the Sea – Offshore Jurisdiction’ in K W, Ryan (ed), International Law in Australia (2nd ed, 1984) 390–416Google Scholar.

²⁸ See, eg, Marcus, Haward, ‘The Australian Offshore Constitutional Settlement’ (1989) 13 Marine Policy 334Google Scholar.

²⁹ See, eg, Martin Ferguson, UN Confirms Australia's Rights over Extra 2.5 Million Square Kilometres of Seabed (2008) Minister for Resources and Energy <http://minister.ret.gov.au/TheHonMartinFergusonMP/Pages/UNCONFIRMSAUSTRALIA'SRIGHTSOVEREXTRA.aspx> at 25 March 2009.

³⁰ Seas and Submerged Lands Act 1973 (Cth) ss 14-16.

³¹ Seas and Submerged Lands Case (1975) 135 CLR 337, 414–15 (Gibbs J).

³² Ibid 415 (Gibbs J) who noted that any claim by the Commonwealth to sovereignty over the area between the low-water and high-water mark would be invalid.

³³ Ibid 476 (Mason J).

³⁴ Ibid.

³⁵ The international law with respect to straight baselines has developed considerably during the past 50 years, and Australia has sought to take advantage of this especially since the conclusion of the LOSC and baselines have been proclaimed under the Seas and Submerged Lands Act 1973 (Cth): Attorney-General's Department, Australia's Territorial Sea Baseline (1988).

³⁶ This is not to suggest that at the time of Federation there were no examples of waters which fell under the exclusive control of a colony as a result of such waters being ‘historic bays': see the extensive discussion in W R, Edeson, ‘Australian Bays’ [1968–1969] Australian Year Book of International Law 5Google Scholar.

³⁷ (1977) 138 CLR 346 ('Raptis’).

³⁸ Ibid 360–361 where Gibbs J did refer to the dictionary definition in order to distinguish between a bay and gulf, noting that: ‘Both are indentations of the sea into the land. “The distinction between gulf and bay is not always clearly marked, but in general a bay is wider in proportion to its amount of recession than a gulf…“'. See also 384 (Mason J).

³⁹ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [14–15].

⁴⁰ Ibid [15].

⁴¹ Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [14].

⁴² Ibid.

⁴³ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [16].

⁴⁴ United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) ('LOSC’).

⁴⁵ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [13].

⁴⁶ LOSC, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

⁴⁷ This exercise was left to the Magnetic Times; see Hirst, G (2007) ‘Red Baron case reveals “dangerous precedent“’ Magnetic Times (Magnetic Island, Queensland), 19 December 2007 <http://www.magnetictimes.com/index.php?ID=2541> at 6 March 2008.

⁴⁸ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [15].

⁴⁹ See, eg, Radaich v Smith (1959) 101 CLR 209 where the High Court characterised a deed a lease despite it being referred to as a ‘licence'. See also the discussion of this issue in Raptis (1977) 138 CLR 346, 377–8 (Stephen J) who upon a review of the jurisprudence as to whether a bay was part of inland or internal waters, noted that the common law approach would also apply in determining whether ‘indentations are within the description of bays'.

⁵⁰ The applicants, who did contest the proposition that Horseshoe Bay was not a part of the Marine Park, were self-represented. GBRMPA was a co-respondent with Airwork, the party that led the argument.

⁵¹ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [7].

⁵² Ibid [11].

⁵³ Letters Patent Erecting Colony of Queensland 1859 (Imp).

⁵⁴ F W S Cumbrae-Stewart, The Boundaries of Queensland with Special Reference to The Maritime Boundary and “Territorial Waters Jurisdiction Act, 1878” (1930) 8.

⁵⁵ R D, Lumb, ‘The Maritime Boundaries of Queensland and New South Wales’ (1964) 1, No. 4 University of Queensland Papers, Faculty of Law 3, 7Google Scholar concluded that by 1872 as a result of the issuing of additional Letters Patent, that the ‘boundaries of Queensland extended to all islands within 60 nautical miles of the coast'.

⁵⁶ Cumbrae-Stewart, above n 55, 14. See also comments by the High Court on the processes leading to the settling of the boundaries of Queensland in Seas and Submerged Lands Case (1975) 135 CLR 337, 461 (Mason J); 484 (Jacobs J).

⁵⁷ LOSC, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

⁵⁸ Cumbrae-Stewart, above n 55, 14. See also the discussion in Lumb, above n 56, 3–15; and O'Connell, above n 25, 268–72 who also took a wide view of the potential ambit of Queensland's control over the Great Barrier Reef; cf. the subsequent discussion in R D, Lumb, ‘Australian Coastal Jurisdiction’ in K W, Ryan (ed), International Law in Australia (2nd ed, 1984) 370, 388Google Scholar who qualified the position with respect to ‘Queensland internal waters’ by noting that ‘[t]hese waters may well be extensive and would include waters which are traditionally regarded as being within State jurisdiction under internal waters principles'.

⁵⁹ See, eg, Bonser v La Macchia (1969) 122 CLR 177, 185 (Barwick CJ).

⁶⁰ From Cape Pallarenda to the south west coast of the island.

⁶¹ For example, the Macquarie Dictionary defines ‘adjacent’ to mean ‘lying near; close, or contiguous; adjoining; neighbouring'. Magnetic Island is each ‘lying near', ‘close, or contiguous’ and ‘neighbouring’ the Queensland coast.

⁶² Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [11].

⁶³ Raptis (1977) 138 CLR 346, 376–7 (Stephen J) who in turn had considered the decision of the international tribunal in the North Atlantic Coast Fisheries Case (Great Britain v United States of America) (1910) 11 RIAA 167.

⁶⁴ Bonser v La Macchia (1969) 122 CLR 177, 185 (Barwick CJ); 221–2 (Windeyer J); Seas and Submerged Lands Case (1975) 135 CLR 337, 371–2 (Barwick CJ); 459, 468 (Mason J); cf Bonser v La Macchia (1969) 122 CLR 177, 209 (Menzies J) who stated that ‘In 1900 waters within the three-mile limit of the coast of a colony would be understood as the territorial waters of a colony', though this observation needs to be read against the consideration by the Court in that case of the interpretation of s 51(x) of the Constitution and the words ‘territorial limits'.

⁶⁵ Bonser v La Macchia (1969) 122 CLR 177, 221–2 (Windeyer J); Seas and Submerged Lands Case (1975) 135 CLR 337, 369 (Barwick CJ).

⁶⁶ Raptis (1977) 138 CLR 346, 359–60 (Gibbs J) noting that ‘the effect of the letters patent of 1836 was that the bays and gulfs on the south coast of South Australia became part of the territory of South Australia whether or not they would have been regarded by the rules of the common law or the rules of international law as forming part of that territory.'; see also 367 (Stephen J); 381 (Mason J); 390–91 (Jacobs J).

⁶⁷ Raptis (1977) 138 CLR 346, 381 (Mason J). See also Seas and Submerged Lands Case (1975) 135 CLR 337, 460 (Mason J).

⁶⁸ Edeson, writing in 1969 prior to decision in Raptis had taken a similar view to that subsequently endorsed by the High Court, see Edeson, above n 36, 17.

⁶⁹ Ibid 18. See also O'Connell, above n 25, 262–3 who outlines three tests in English jurisprudence as to what are the waters that fall within a bay.

⁷⁰ The rights which may exist under international law to claim maritime zones from the low-water mark around an island are distinguishable from the common law rights primarily because the starting point under international law is the outer point of recognisable territorial limits, or in exceptional cases where straight baselines have been drawn, artificial limits which are founded upon criteria provided for in the LOSC; see Raptis (1977) 138 CLR 346, 384 (Mason J). For a discussion of the position Australia has taken under the law of the sea with respect to the drawing of straight baselines see R D, Lumb, The Law of the Sea and Australian Off-Shore Areas (2nd ed, 1978) 10–16Google Scholar; Landale and Burmester, above n 27, 395–6.

⁷¹ In 1965 O'Connell had argued that ‘It is accepted in Australian practice that “bays” are State and not Federal territory': O'Connell, above n 25, 262. However, this statement needs to be qualified as there does not seem to have been any conclusive position on this issue at the time of Federation, and whilst there may well have been practice to that effect between 1901 and 1965, this was not reflected by the decision of the High Court in Seas and Submerged Lands Case (1975) 135 CLR 337; see also Edeson, above n 36, 18.

⁷² See the discussion of some of these approaches in Edeson, above n 36, 19–23.

⁷³ R v Jimmy [1875] IV QSCR 130.

⁷⁴ Ibid 131 (Cockle CJ).

⁷⁵ Likewise in another Queensland case D v Commissioner of Taxes [1941] QSR 218, the Full Court of the Supreme Court of Queensland interpreted the word ‘Queensland’ in the Income Tax Assessment Act 1936 (Qld) to include the territorial waters, however, this case turned on the extraterritorial capacity of the Queensland legislature to legislate over these waters; see D v Commissioner of Taxes [1941] QSR 218, 226 (Philp J).

⁷⁶ Edeson, above n 36, 20. See also the discussion in Cumbrae-Stewart, above n 52, 16–17 discussing the notion of the ‘King's Chambers’ in the case of ‘enclosed areas of sea more than 6 miles across, whether bays or estuaries'.

⁷⁷ (1968) 119 CLR 191.

⁷⁸ See also the decision in Risk v Northern Territory (2002) 210 CLR 392 and the exchange which took place between counsel and the bench on the status of waters fauces terrae: Transcript of Proceedings, Risk v The Northern Territory of Australia & Anor D12/2001 (High Court of Australia, 6 March 2002).

⁷⁹ Union Steamship v Ferguson (1968) 119 CLR 191, 201 (Windeyer J).

⁸⁰ Edeson, above n 36, 23.

⁸¹ Raptis (1977) 138 CLR 346, 378 (Stephen J). In Commonwealth of Australia v Yarmirr (1999) 101 FCR 171, the Full Court of the Federal Court did have occasion to review parts of the common law test outlined by the High Court in Raptis as to the status of bays and applied those tests to certain waters in the Northern Territory; see [90–200]. However, when the matter went on appeal to the High Court, this issue was not explored in any detail: Commonwealth v Yarmirr (2001) 208 CLR 1. For some foreign commentary on the Australian position with respect to bays see Leo, J Bouchez The Regime of Bays in International Law (1964) 228–9Google Scholar; Gayl, S Westerman, The Juridical Bay (1987) 197–201Google Scholar.

⁸² Queensland Environmental Protection Agency, Magnetic Island: nature, culture and history (2006) <http://www.epa.qld.gov.au/parks_and_forests/find_a_park_or_forest/magnetic_island_national_park/magnetic_island__nature_culture_and_history/> at 7 March 2008.

⁸³ Moreton Bay, adjoining the port of Brisbane, and a principal bay in Southeast Queensland prior to Federation, would be a possible example of such a bay in Queensland; see O'Connell, above n 25, 267. In Commonwealth of Australia v Yarmirr (1999) 101 FCR 171, 217-220, the Federal Court placed emphasis upon undertaking an historical analysis when reviewing the status of certain bays in the Northern Territory.

⁸⁴ O'Connell, above n 25, 267, where O'Connell omits Horseshoe Bay from a list of possible historic bays in Australia.

⁸⁵ In this respect it needs to be recalled that all of Australia's external territories other than the Australian Antarctic Territory are principally comprised of small offshore islands and associated maritime territory; an example of which is the Coral Sea Islands Territory established under the Coral Sea Islands Act 1969 (Cth).

⁸⁶ North Queensland Conservation Council and Great Barrier Reef Park Authority and Ors [2000] AATA 925 (Unreported, Forgie DP and Christie M, 20 October 2000).

⁸⁷ This interpretation was adopted in Ibid [141] where the AAT simply noted: ‘As an island, Magnetic Island is excluded from the Great Barrier Reef Region and so from the area that may be part of the Marine Park.'

⁸⁸ Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205, art 10(1) (entered into force 10 September 1964); confirmed in LOSC, opened for signature 10 December 1982, 1833 UNTS 3, art 121(1) (entered into force 16 November 1994). See the general discussion on this point in Hiran W Jayewardene, The Regime of Islands in International Law (1990) 3–6.

⁸⁹ See LOSC, opened for signature 10 December 1982, 1833 UNTS 3, art 121 (entered into force 16 November 1994).

⁹⁰ (1976) 28 FLR 480.

⁹¹ Ibid 490. From time to time the status of certain islands has been considered by Australian courts, most particularly Kangaroo Island in Raptis (1977) 138 CLR 346, 363–4 (Gibbs J).

⁹² Acts Interpretation Act 1901 (Cth) s 15AA.

⁹³ Great Barrier Reef Marine Park Act 1975 (Cth) s 2A.

⁹⁴ In support of this view, see also North Queensland Conservation Council and Great Barrier Reef Park Authority and Ors [2000] AATA 925 (Unreported, Forgie DP and Christie M, 20 October 2000) [142–3] where the AAT was of the opinion that a breakwater constructed over Nelly Bay on Magnetic Island was not a part of Queensland and instead fell within the ambit of the Great Barrier Reef Region and within the Marine Park.

⁹⁵ Commonwealth of Australia Gazette, No S 29 (9 February 1983); see also Attorney-General's Department, Australia's Territorial Sea Baseline (1988). The precise coordinates from which the baselines are drawn are to be found in Commonwealth of Australia Gazette, No S 29 (9 February 1983), sch, table 1.

⁹⁶ The AAT did decide that it could consider the effects of activities outside Horseshoe Bay not only on Horseshoe Bay itself, but also on the areas on land, including residential areas: Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [28]. In the October 2007 decision, the AAT held that these peripheral areas were ‘adjacent to’ the Marine Park: Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [49].

⁹⁷ Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [28].

⁹⁸ The AAT did, however, in the December 2007 decision, have regard to the effects of noise and safety issues as they applied to Nelly Bay: Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [29], which is a much more commercial bay, with a harbour and ferry terminal: Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [12, 100]; and Picnic Bay, which is less popular for recreation than Horseshoe Bay: Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [71]; Connolly No 2 [2007] AATA 2098 (Unreported, Downes P and Kelly M, 18 December 2007) [43]. The operator of the seaplane sought a permit to use these bays as locations for take-off and landing but had not done so by the time of the October 2007 decision: Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [79]. Consequently no effects of take-off and landing had been observed at these locations, unlike at Horseshoe Bay.

⁹⁹ Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 523 defines an ‘action’ as including a project; a development; an undertaking; an activity or series of activities; and an alteration of any of those things.

¹⁰⁰ Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 12 and 15A.

¹⁰¹ Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 15B and 15C.

¹⁰² Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18 and 18A.

¹⁰³ Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 20 and 20A. Other ‘matters’ are also included within the EPBC Act, but these other matters are not relevant to this case.

¹⁰⁴ See Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 43.

¹⁰⁵ Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 43(b) continues by stipulating that an authorisation may be made or issued under the Great Barrier Reef Marine Park Act 1975 (Cth) or regulations in the form of a zoning plan, a plan of management, a permission, an authority, an approval or a permit.

¹⁰⁶ Department of the Environment, Water, Heritage and the Arts, Australian Heritage Database Great Barrier Reef, Townsville, QLD, Australia <http://www.environment.gov.au/cgi-bin/ahdb/search.pl?mode=place_detail;place_id=105060> at 7 March 2008.

¹⁰⁷ World Heritage Committee, Fifth Session Sydney, 26–30 October 1981 Report of the Rapporteur, CC-81/CONF/003/6 (1982). The decision contains the following addendum ‘The Committee noted that only a small proportion of the area nominated for the World Heritage List had been proclaimed within the Great Barrier Reef Region as defined in the Great Barrier Reef Marine Park Act 1975 (Cth), and the Committee requested the Australian Government to take steps to ensure that the whole area is proclaimed under relevant legislation as soon as possible and that the necessary environmental protection measures are taken.'

¹⁰⁸ ‘Determination regarding including World Heritage Places in the National Heritage List of the Minister of the Environment and Water Resources', 15 May 2007, Government Gazette S99, 21 May 2007.

¹⁰⁹ The Determination of the Minister of 15 May 2007, ibid, listed the protected values as:

World Heritage Criteria

(vii) to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance;

(viii) to be outstanding examples representing major stages of earth's history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features;

(ix) to be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals;

(x) to contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.

National Heritage Criteria

(a) the place has outstanding heritage value to the nation because of the place's importance in the course, or pattern, of Australia's natural or cultural history;

(b) the place has outstanding heritage value to the nation because of the place's possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;

(c) the place has outstanding heritage value to the nation because of the place's potential to yield information that will contribute to an understanding of Australia's natural or cultural history;

(d) the place has outstanding heritage value to the nation because of the place's importance in demonstrating the principal characteristics of:

(i) a class of Australia's natural or cultural places; or

(ii) a class of Australia's natural or cultural environments;

(e) the place has outstanding heritage value to the nation because of the place's importance in exhibiting particular aesthetic characteristics valued by a community or cultural group.

¹¹⁰ Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [41, 91, 95].

¹¹¹ ‘Significant impact’ is a concept that is still uncertain. It is not defined in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and courts have determined that significant impact must be determined on the particular facts of a case; see Booth v Bosworth (2001) 114 FCR 39; Brown v Forestry Tasmania (2007) 159 FCR 467.

¹¹² (2001) 114 FCR 39.

¹¹³ Ibid 65 (Branson J).

¹¹⁴ Letter from David Jackson, EPBC Act Compliance Section (QLD) to Tanina Connolly, June 2008.

¹¹⁵ Connolly No 1 [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007) [117].

¹¹⁶ Ibid [113].

¹¹⁷ Andrew, Macintosh, ‘Why the Environment Protection and Biodiversity Conservation Act's referral, assessment and approval process is failing to achieve its environmental objectives’ (2004) 21 Environmental and Planning Law Journal 288Google Scholar; Andrew, Macintosh and Debra, Wilkinson, ‘EPBC Act – The Case for Reform’ (2005) 10(1) Australasian Journal of Natural Resource Law and Policy 139Google Scholar.

¹¹⁸ As an ‘interested person’ within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) the Connollys could apply to the Federal Court for an injunction under s 475 of the Act to restrain breaches of the Act; that is to restrain the Red Baron being likely to have a significant impact on the values of the World Heritage area or any protected or migratory species.