In Adverse Ruling, Judge Expands Australian Environment Minister's Power

By Chris McGrath

BRISBANE, Queensland, Australia, December 22, 2003 (ENS) - A win for WWF Australia and the Queensland Conservation Council in the Federal Court of Australia has resulted in an expansion of environmental powers for the Australian government. The court has ruled that the environment minister must consider the potential downstream impacts of irrigated agriculture and other development arising from a proposed dam in Central Queensland.

The Nathan Dam is proposed by Sudaw Development Limited for the Dawson River which flows into the Fitzroy River, and then into the Great Barrier Reef. If approved, the dam would provide water for irrigation of 30,000 hectares of crop land, mainly for growing cotton.

In her ruling, delivered Friday, Justice Susan Kiefel overturned decisions of the Australian environment minister because he failed to consider the impacts of downstream agricultural development on the Great Barrier Reef World Heritage Area when assessing of the impacts of the Nathan Dam.

This decision has wide implications for the operation of environmental law in Australia.

Justice Susan Kiefel (Photo courtesy Supreme Court of Queensland Library)

In the Nathan Dam Case the two conservation groups sought judicial review of decisions made by Environment Minister Dr. David Kemp in 2002 regarding the proposed 27 meter (88 foot) high dam.

The groups raised concerns about the likelihood of agricultural chemicals, particularly endosulfan, polluting water flowing to the Great Barrier Reef World Heritage Area, on the world's longest reef.

Near-shore reefs have recently been recognized as suffering degraded water quality due to marine pollution flowing from sources on land. The river catchment in which the dam is proposed to be built has been recognized as a high risk area for activities causing pollution of the Great Barrier Reef.

WWF Australia Great Barrier Reef campaign manager Imogen Zethoven said, “The Australian and Queensland governments' recently released Reef Water Quality Protection Plan identifies the Fitzroy River as a high risk to the Great Barrier Reef from catchment water quality impacts."

“A major dam on a high risk river will accelerate decline of inshore reefs from poor water quality when the plan’s goal is to reverse the decline in water quality entering the reef," she said.

Australian Minister for Environment and Heritage Dr. David Kemp (Photo courtesy Office of the Minister)

Kemp 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 EPBC Act provides an offense, assessment and approval system for actions impacting upon matters of national environmental significance, as well as actions impacting on Australian government land and actions undertaken by the Australian government.

In this case, “matters of national environmental significance” include the world heritage values of a declared World Heritage Site and listed migratory species.

A person proposing to take an action that has, is likely to have, a significant impact on a matter of national environmental significance is required to refer the proposal to the Australian Environment Minister, who must then decide whether it is a “controlled action” requiring assessment and approval under the EPBC Act. If the minister decides a proposal is a controlled action, it must then be assessed under the Act and either approved or refused. The minister may also impose conditions on an approval.

The Great Barrier Reef on the northeast coast of Australia contains the world's largest collection of coral reefs, with 400 types of coral, 1,500 species of fish and 4,000 types of mollusc. (Photo courtesy UNESCO)

Justice Kiefel considered previous decisions of the United States, New Zealand and other Australian courts and concluded that these cases strongly suggest that the question of whether there are likely to be significant effects upon the environment requires a wide consideration of the consequences which will follow if a proposed activity proceeds.

Queensland Conservation Council (QCC) Coordinator Felicity Wishart said, “Today’s decision by Justice Susan Kiefel substantially expands Commonwealth powers under the Environment Protection and Biodiversity Conservation Act 1999."

“If approved, the Nathan Dam would be the fourth largest dam in Queensland," Wishart said. "Dams are not sustainable and future dam building schemes should be rejected in favor of improved water efficiency and sustainable management of our rivers.”

The lower Dawson River Valley is a region with substantial development potential, constrained by the lack of increased reliable water supply. It currently has a grazing, cropping and mining economy and, in common with similar regional areas, is stagnating or in decline.

Existing demand for water is provided for by a series of weirs. This system is at capacity and the region is not able to attract new development.

Yet, the court recognized, potential exists in the lower Dawson River Valley for cotton ginning, food processing, development of sustainable forests, the expansion of the existing cotton growing industry and diversified cash crops, leading to enhanced employment opportunities and improved quality of life.

Existing resource based activity includes coal mining, coal seam methane extraction, a traversing gas pipeline, high capacity rail infrastructure from the center of the region to port and major electricity generation. The ruling states, "The expansion and integrated development of these activities in the region is constrained by the lack of one element: water."

Development of the region is expected to bring new rail infrastructure to become part of an inland regional rail development, supported by minerals and produce transport revenue.

The Fitzroy River catchment is the second largest in Australia. (Photo courtesy Coastal Cooperative Research Centre)

The Queensland Conservation Council's argument rejected the Department of Natural Resources' claim that endosulfan use is adequately managed by the Queensland Department of Primary Industry.

The QCC agrees with the proposal by the Great Barrier Reef Marine Park Authority that there be at least a five kilometer buffer between the river and cotton crops. It has not proved possible, even with best practice, to prevent contamination of waterways with endosulfan, the court acknowledged.

Endosulfan affects the human central nervous system. Hyperactivity, nausea, dizziness, headache, or convulsions have been observed in adults exposed to high doses. Severe poisoning may result in death.

Studies of the effects of endosulfan on animals suggest that long-term exposure can damage the kidneys, testes, and liver and may affect the body's ability to fight infection.

The requirement to protect the values of the Great Barrier Reef Marine Park Authority directly conflicts with the proposal to support irrigated agriculture within the five kilometer strip along the Dawson River, Judge Kiefel decided.

“The decision today does not stop the dam from proceeding, however, it does mean that the minister must assess the downstream impacts of the proposed dam on the World Heritage Area,” Zethoven said on Friday. “These impacts may include increased sediment, nutrient and pesticide pollution of the Great Barrier Reef.

The EPBC Act provides the overarching legal requirements for environmental impact assessment of development proposals in Australia and, by widening the scope of relevant impacts that must be considered for assessment under the Act, the decision strengthens the ability of the Act to protect the environment.

The decision improves the decisionmaking 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 Australian government under the EPBC Act will be required to comply with the same principles. Therefore, the implications of this decision are likely to reverberate for decades in the Australian environmental legal system.