In the high profile Nathan Dam case (Environment Defenders Office press release) the courts ruled that pollution effects of downstream irrigation should have been part of the original assessment process. The impacts in this case, were to be felt as far as the Great Barrier Reef World Heritage Area. On 19 February 2007, substantial amendments to the EPBC Act came into force to better reflect this ruling.
The new section 527E defines an impact as an "event or circumstance" that is a direct or indirect consequence of an action, where the indirect impact must be "substantially caused" by the action. This clarifies that indirect impacts are material to the approvals process but limits this to the "primary action", except where the primary action "facilitates, to a major extent" the secondary action and the secondary action is "within the contemplation of the primary person" or a "reasonably forseeable consequence of the primary action".
The amended Act says that criminal and civil offences would not apply to a person acting at the direction or request of the proponent, where this "secondary" impact is a consequence of a "secondary" action. In other words, an individual could not be prosecuted for polluting a waterway whilst driving a car on a road built by a highways agency. It is nonetheless expected that a proponent still address all adverse impacts when seeking approval.
There is no impunity for omitting to assess an effect in the first place. Consultants need to give careful thought to the full scope of potential indirect effects on matters protected by Part 3 of the EPBC Act, even if these are well beyond the construction footprint of the development. Accordingly, consultants should advise their clients to do an impact assessment of any effects that are:
- substantially caused by the primary action and are
- reasonably foreseeable; or
- contemplated by the proponent.
Significant Impact Guidelines 1.1 - Matters of National Environmental Significance (PDF - 743 KB)
Environment Protection and Biodiversity Conservation Act 1999