Environmental Law Australia

Nathan Dam case

This here's the vanilla single for the book thingie.

The Nathan Dam Case was a major test case of environmental impact assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The Queensland Conservation Council and WWF-Australia challenged decisions of the Federal Environment Minister involving a proposal to construct a large dam in central Queensland. The purpose of building the dam was to supply water to irrigate crops and other development in the catchment of the Great Barrier Reef World Heritage Area.

The issue in the case was whether the impacts of the dam could include pollution from farmers using water supplied by the dam. The court held that they could.

The trial was heard in the Federal Court by Kiefel J in 2003 and an appeal was heard in the Full Court of the Federal Court by Black CJ, Ryan and Finn JJ in 2004.

In relation to the central question of what the phrase “all adverse impacts” meant in section 75(2) of the EPBC Act, the Full Court held that:

[52] … “Impact” in the relevant sense means the influence or effect of an action: Oxford English Dictionary, 2nd ed, vol VII, 694-695. As the respondents submitted, the word “impact” is often used with regard to ideas, concepts and ideologies: “impact” in its ordinary meaning can readily include the “indirect” consequences of an action and may include the results of acts done by persons other than the principal actor. Expressions such as “the impact of science on society” or “the impact of drought on the economy” serve to illustrate the point. Accordingly, we take s 75(2) to require the Minister to consider each way in which a proposed action will, or is likely to, adversely influence or effect the world heritage values of a declared World Heritage property or listed migratory species. As a matter of ordinary usage that influence or effect may be direct or indirect. “Impact” in this sense is not confined to direct physical effects of the action on the matter protected by the relevant provision of Pt 3 of Ch 2 of the EPBC Act. It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter. Provided that the concept is understood and applied correctly in this way, it is a question of fact for the Environment Minister whether a particular adverse effect is an “impact” of a proposed action. However, we do not consider that the Minister did apply the correct test in answering the question of fact which had arisen in the present case. …

[55] … the Environment Minister has consistently adopted an interpretation of “adverse impacts… the action … is likely to have” in s 75(2) of the EPBC Actwhich excludes from that concept the consequences of conduct of persons other than the proponent of the proposed action and activities which were not proposed as part of that action and did not form an inherent or inextricable part of it.

[56] The Minister’s approach, on a fair reading of his reasons, was not to find, as a matter of fact, that downstream pollution by irrigators was not likely to occur as a consequence of the construction and operation of the dam. Rather, the Minister seems to have considered that such downstream pollution, whether likely or not, was incapable, on a proper interpretation of the EPBC Act, of constituting an adverse impact of the proposed action being the construction and operation of the dam. We agree with the learned primary Judge that this view was erroneous.

[57] As mentioned previously, it is undesirable in the circumstances for this Full Court to attempt to paraphrase the expression in s 75(2) to which we have just drawn attention. Nor is it appropriate to essay an exhaustive definition of “adverse impacts” which an “action” within the meaning ascribed by s 523 may be likely to have. It is sufficient in this case to indicate that “all adverse impacts” includes each consequence which can reasonably be imputed as within the contemplation of the proponent of the action, whether those consequences are within the control of the proponent or not.

Following this decision the EPBC Act was amended to include a convoluted definition of “impact” in section 527E. While convoluted, the definition appears to materially reflect the interpretation given to “impact” by the Full Court.

Key documents

Referral documents & decision

  • Referral of the dam by Sudaw Developments Ltd on 19 August 2002 (Referral No. EPBC 2002/770).
  • Map of the proposed dam site accompanying the 2002 referral. Note: better quality maps showing the dam location and dam reservoir are available here and here from a later referral in 2008.
  • GoogleEarth images showing surrounding countryside and terrain of the proposed Nathan Dam.
  • The Minister’s decision under section 75 of the EPBC Act, the subject of the application for judicial review (a second, related decision under section 87 of the EPBC Act was also challenged).

Statement of reasons for decision

Application for judicial review & trial decision

Appeal by Environment Minister

A summary of the background and significance of the case is available here.

Transcript of a debate on ABC Radio Earthbeat about the dam in 1999 is available here.

On 3 July 2008 a revised proposal for the Nathan Dam and an associated pipeline to supply water to coal mines was referred under the EPBC Act (Referral No. EPBC 2008/4313). It was declared a controlled action and received its terms of reference in 2009 but has not proceeded further through the assessment process. For more information see the SunWater website and WPSQ.