22 December 2003
EDO Alert! Conservationists win battle in Federal Court over proposed Nathan Dam!
On Friday 19 December 2003 we won the battle for better environmental assessment of the impacts of the proposed Nathan Dam in the Federal Court!!!
EDO (Qld) were the solicitors on the record for successful clients Queensland
Conservation Council (QCC) and the World Wide Fund for Nature Australia (WWF).
The case was about the proper scope of the environmental assessment (at the
Commonwealth level) of the proposed Nathan Dam, and whether impacts from agriculture
which would be facilitated by the Dam should be considered an impact of the
Dam itself for the purposes of the Commonwealth assessment and approval process
under the Environment Protection and Biodiversity Conservation Act ('EPBC
Act').
Surprisingly, the principle of holistic, cumulative environmental impact assessment
had not been established at the Commonwealth level until this case!
In a welcome decision, Justice Susan Kiefel of the Federal Court found that
Commonwealth Environment Minister Kemp had erred in excluding from consideration
the impacts from agriculture to be enabled by the Dam, and held that the proper
approach to environmental assessment under the EPBC Act was a wide one and
properly extended to considering the "whole, cumulated and continuing
effect" of the activity, including the impacts of activities of third
parties.
The case therefore has excellent implications for all environmental assessment
under the EPBC Act in the future, with the Commonwealth Environment Minister
required to take a broad approach to adverse environmental impacts of proposed
"actions", be they dams or not!
Felicity Wishart (QCC) and Imogen Zethoven (WWF) with EDO
Qld and supporters outside the Federal Court after the Nathan Dam case win.
Photo courtesy of the Courier Mail.
Minister Kemp must now reconsider the environmental assessment of the Nathan Dam, and, following the guidance of the court, it is likely that he will decide to include impacts on the Great Barrier Reef and migratory species in the matters which need to be addressed by the Dam developers in the environmental assessment document. The Minister will base his final decision on whether to approve the dam or not on that environmental assessment document.
We would like to congratulate and thank barristers Stephen Keim and Chris
McGrath for the tireless effort they put into this case, resulting in thorough
and convincing written and oral arguments which ultimately led to the win!
And similar congratulations of course go to the clients, QCC and WWF, for
their courageous decision to pursue this case in the Court despite possible
crippling adverse costs orders if they did not succeed.
See the following short article by barrister Chris McGrath to learn
more about the case and its broad-ranging implications.
Minister's dam decision overturned
Chris McGrath
Barrister-at-Law
In Queensland Conservation Council Inc v Minister for the Environment & Heritage [2003] FCA 1463 ("the Nathan Dam Case"), Justice Susan Kiefel of the Federal Court of Australia overturned decisions of the Federal Environment Minister for refusing to consider the impacts of major associated downstream agricultural development on the Great Barrier Reef World Heritage Area when assessing of the impacts of a major dam. This decision has far-reaching implications for the operation of environmental law in Australia.
In Queensland Conservation Council Inc v Minister for the Environment &
Heritage [2003] FCA 1463 ("the Nathan Dam Case") (19 December
2003), two conservation groups, the Queensland Conservation Council and World
Wide Fund for Nature (Australia), successfully sought judicial review of decisions
of the Federal Environment Minister under the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) ("EPBC Act"). (1)
The decisions that were challenged involved a proposal to construct and operate
the 880,000 megalitre Nathan Dam near Taroom on the Dawson River in central
Queensland. The Dawson River joins the Mackenzie River to become the Fitzroy
River flowing east to the coast and the Great Barrier Reef World Heritage
Area ("GBR") at Rockhampton.
The purpose of building the Nathan Dam is to supply water for irrigation of
30,000 hectares of farmland, mostly cotton growing, in the lower Dawson River
Valley and other development in the region. Major concerns were raised regarding
the likelihood of agricultural chemicals, particularly endosulfan, polluting
water flowing to the GBR. The Fitzroy River catchment is recognised as a high-risk
area for activities causing pollution of the GBR.
Despite concerns over the likelihood of the associated downstream agricultural
development causing significant impacts to the GBR, the Federal Environment
Minister, Dr David Kemp, refused to consider these impacts. He stated "I
found that potential impacts of the irrigation of land by persons other than
the proponents, using water from the dam, are not impacts of the … construction
and operation of the dam."
The statutory context of the Nathan Dam Case was that Part 3 (Chapter 2) and
Parts 7-9 (Chapter 4) of the EPBC Act provide an offence, assessment and approval
system for actions impacting upon matters of national environmental significance
(as well as actions impacting on Commonwealth land and actions undertaken
by the Commonwealth). As relevant to this case, "matters of national
environmental significance" include the world heritage values of a declared
World Heritage property and listed migratory species.
A person proposing to take an action that has, will have or is likely to have
a significant impact on a matter of national environmental significance is
required to refer the proposal to the Federal Environment Minister, who must
then decide under s75 whether it is a "controlled action" requiring
assessment and approval under the Act. If the Minister decides a proposal
is a controlled action, it must then be assessed under the EPBC Act and either
approved or refused under s133 of the Act. The Minister may also impose conditions
on an approval.
The decision in the Nathan Dam Case concerned the extent of the enquiry necessary
to be undertaken by the Federal Environment Minister under s75 of the EPBC
Act of the impacts which a proposed development or activity may have upon
the matters protected by the Act.
In summary, the decision establishes three legal principles of broad application
for the future operation of the EPBC Act, namely:
- When assessing the impacts of
a proposal under the s75 of the EPBC Act, the enquiry of the Federal Environment
Minister is a wide one and might extend properly to the whole, cumulated
and continuing effect of the activity, including the impacts of activities
of third parties.
- When assessing the impacts of
a proposal under the s75 of the EPBC Act, the Federal Environment Minister
is first to consider 'all adverse impacts' the action is likely to have.
The widest possible consideration is to be given in the first place, limited
only by considerations of the likelihood of it happening. By that means
the Minister should exclude from further consideration those possible impacts
which lie in the realms of speculation.
- No narrow approach should be taken to the interpretation of the EPBC Act because of the high public policy apparent in the objects of the Act.
This decision has fundamental and far-reaching implications for development
approval and the operation of environmental law in Australia by recognising
the broad scope of relevant impacts that must be considered by the Federal
Environment Minister under s75 the EPBC Act.
The EPBC Act provides the overarching legal requirements for environmental
impact assessment of development proposals in Australia and, by massively
widening the scope of relevant impacts that must be considered for assessment
under the Act, the decision dramatically strengthens the ability of the Act
to protect the environment. The decision fundamentally improves the decision-making
process for development approval under the Act by establishing that piecemeal
decisions are unlawful. State and Territory governments performing environmental
impact assessment under bilateral agreements on behalf of the Commonwealth
Government under the EPBC Act will also be required to comply with the same
principles. The implications of this decision are therefore likely to reverberate
for decades in the Australian environmental legal system.
Endnotes
(1) The decision is available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/1463.html.
In relation to the EPBC Act generally, see http://www.deh.gov.au/epbc/.
To help support EDO Qld lawyers to run other important cases to improve environmental laws, please consider making a donation or becoming a member by completing and returning a membership/donations form, available from our website. If you are already a member and supporter, thankyou, this case is your victory too!