Express law No. 04

10 August 2004

Scope of Commonwealth environmental laws

The Full Federal
Court has taken a broad view of the environmental impacts
that must be considered under the Environment
Protection and Biodiversity Conservation Act 1999 (Cth)
(the EPBC Act) in the assessment and approval of environmentally
significant actions. Commonwealth agencies should give
careful consideration to the requirements of the Act
in connection with any proposal that involves direct
or indirect environmental impacts.

Minister for the Environment
and Heritage v Queensland Conservation Council Inc

Federal
Court of Australia (Full Court) 30 July 2004, [2004] FCAFC
190

This case concerned the proposed Nathan Dam project
on the Dawson River in Central Queensland. The central
question
was the scope of the 'relevant impacts' that had to be
taken into account by the Minister for the Environment
and Heritage under section 75 of the EPBC Act in deciding
whether the dam project was a 'controlled action' for the
purposes of Part 3 of the Act. Of particular concern was
the possible indirect impacts of the dam on the world heritage
values of the Great Barrier Reef World Heritage Area. These
impacts might occur as a result of the use of water from
the dam by farmers for agricultural irrigation, with consequent
runoff of chemicals into the Nathan River and downstream
to the Great Barrier Reef.

Kiefel J had held that the Minister
could not simply decide to exclude from consideration the
consequences of activities
undertaken by third parties as a consequence of the referred
action. In this case, this meant that when the Minister
was considering the relevant impacts of the construction
and operation of the Nathan Dam, he was obliged to consider
the possible impacts of the irrigation activities which
the dam would facilitate.

The Minister appealed to the Full
Court of the Federal Court, with the aim of obtaining better
guidance on the
scope of the impacts that must be taken into account in
making decisions under the EPBC Act. The Full Court agreed
that the Minister was not obliged to exclude from consideration
the impacts of activities by third parties that are consequences
of the referred action. Following are key points from the
joint judgment of Black CJ, Ryan and Finn JJ:

  • Decisions on the Environment Protection (Impact
    of Proposals) Act 1974 were of little assistance in interpreting
    the
    EPBC Act. Decisions from other jurisdictions should
    also be viewed with caution.
  • The word 'impact'
    in s 75 of the EPBC Act has its ordinary English meaning
    and includes each way in which a proposed
    action will, or is likely to, adversely influence or
    affect the relevant matters of national environmental
    significance
    protected by Part 3 of the 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.
  • Impacts can thus include
    influences which are direct or indirect, and may include
    the results of activities by
    third parties.
  • Impacts include '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'. In this case, the
    use
    of water for growing cotton was clearly within the
    proponent's contemplation.
  • The Full Court took
    no exception to Kiefel J's finding that the Minister
    can only exclude from consideration those
    impacts 'which lie in the realm of speculation',
    provided it is understood that this is predicated on
    the 'impacts'
    of an action, with the connotation ascribed to that
    concept as discussed above.

Implications

Among other things, the decision maintains
the potential for an expansive view of the activities
of the Commonwealth
and Commonwealth agencies which may require assessment
and approval under the EPBC Act. Depending on the
circumstances, the affected activities might even include
dealings
with interests in land (eg. leases and licences).
Clients should consider the possible application of the
Act
at
a very
early stage in planning for such activities, in order
to ensure that any applicable environmental assessment
and
approval requirements under the EPBC Act can be integrated
with other relevant processes. The Department of
the Environment and Heritage is currently considering the
implications
of the judgment for users of the EPBC Act and decision-making
under the Act.

Text of the decision is available
at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/190.html

For
further information please contact:

Josephine Ziino
Senior Executive Lawyer
T (03) 9242 1312 F (03) 9242 1481
josephine.ziino@ags.gov.au

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.