Our Successes · Nature & the Reef

The Nathan Dam case: protecting the Reef and making legal history

04 May, 2012

The landmark Nathan Dam case run by EDO Qld in 2003 (with an appeal in 2004) ensured that federal assessment of a proposed dam in Central Queensland would include the potential for pollution of the World Heritage Area due to agriculture enabled by the dam.

Teeming with extraordinary diversity and exuberant beauty, the Great Barrier Reef World Heritage Area is a natural treasure of global significance. But it is also the receptacle for pesticides, nutrients and sediment washed from hundreds of kilometers inland that poison and smother sensitive marine life.

The landmark Nathan Dam case run by EDO Qld in 2003 (with an appeal in 2004) ensured that federal assessment of a proposed dam in Central Queensland would include the potential for pollution of the World Heritage Area due to agriculture enabled by the dam.

By compelling the environment minister to consider these flow-on impacts, the case has considerably broadened the scope of federal environmental assessments. Legal academics (Peel and Godden 2005) said the ramifications are likely to be as significant as those of the celebrated Franklin Dam case.

In 2002 Sudaw Developments Limited applied for approval from the Federal Environment Minister to build and operate a huge 880,000 megalitre dam on the Dawson River in central Queensland, 500 km inland by river from the Great Barrier Reef World Heritage Area. The water was intended for industrial, urban and agricultural use, including for 30,000 hectares of irrigated agriculture, mostly cotton.

Conservationists were worried that chemical runoff from the cotton crops would pollute the Great Barrier Reef. Although the Federal Environment Minister acknowledged this threat, he refused to include it in his assessment of the dam under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). He decided that assessment would be limited to just the direct impacts of its construction and operation.

For conservationists, the exclusion of these serious indirect impacts indicated either that the assessment process under the EPBC Act was far too narrow in its scope or that the Minister had erred in his interpretation of his legal duties.

EDO Qld provided the Queensland Conservation Council (QCC) and WWF Australia with legal advice that they had a strong basis for challenging the Minister’s exclusion of indirect impacts. But the advice warned that if they lost the case and a subsequent appeal, they could be liable for $40,000-95,000 in costs. This potential costs burden almost scuttled the case, but last minute financial guarantees from another environment group and private citizens saw it into court in September 2003.

Barristers Stephen Keim and Chris McGrath appeared for QCC and WWF before Justice Susan Keifel in the Federal Court for judicial review of the Minister’s decision. They argued that the Minister had misinterpreted the EPBC Act by excluding the impacts of agriculture on the Great Barrier Reef World Heritage Area.

In December, Justice Keifel found that the Minister had indeed erred, and that he should take a wide approach to considering impacts for assessment, extending to the “whole, cumulated and continuing effect” of an activity.

Celebrations of this outstanding decision were tempered by concerns that the Minister would appeal the verdict and he did just that. Back the case went to the Full Federal Court with EDO Qld, Stephen Keim and Chris McGrath once again representing QCC and WWF. Read Chris McGrath’s paper on the case, here.

In July 2004 the three justices of the Full Court unanimously dismissed the Minister’s appeal. In their judgment they said the Minister was required to consider all adverse influences or effects, no matter who was responsible for the action. They also ordered that the Minister pay QCC’s and WFF’s legal costs.

In April 2005 the Environment Minister determined that the assessment of Nathan Dam would include impacts on the Great Barrier Reef World Heritage Area. Sudaw Developments Limited did not proceed further with their application.

However, in July 2008 a corporation owned by the Queensland Government applied to the Federal Government for approval of Nathan Dam with the water proposed mainly for use in coal mines and power stations. The assessment is ongoing (as at June 2011).

EDO Qld congratulates QCC and WWF for taking on this important case. As well as protecting the precious Great Barrier Reef from a major new source of pollution they have broadened the way federal environmental assessments are done.

When environmental impacts of developments are considered, the approach is very often too narrow, not taking all possible impacts into account, but this case showed that Australia’s federal laws support a broad approach.

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.