Clark, Cristy

English

A key feature of authoritarianism is that the government is above the law – it is not accountable to the people for its actions. In contrast, under a democratic system, the rule of law means that the government is constrained by law and can be held accountable by the people.This is particularly pertinent to the move by Attorney-General George Brandis to restrict green groups from challenging major developments under federal law, a direct response from this month’s successful appeal against the approval of the controversial Carmichael coal mine, being developed by the Adani Group, on environmental grounds

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7/20/2020 The government vs the environment: lawfare in Australiahttps://theconversation.com/the-government-vs-the-environment-lawfare-in-australia-46205 1/3AuthorCristy ClarkLecturer in Law, Southern Cross UniversityAcademic rigour, journalistic flairThe government vs the environment: lawfare in AustraliaAugust 18, 2015 4.23pm AESTA key feature of authoritarianism is that the government is above the law – it is not accountable to thepeople for its actions. In contrast, under a democratic system, the rule of law means that thegovernment is constrained by law and can be held accountable by the people.This is particularly pertinent to the move by Attorney-General George Brandis to restrict green groupsfrom challenging major developments under federal law, a direct response from this month’s successful appeal against the approval of the controversial Carmichael coal mine, being developed bythe Adani Group, on environmental grounds.Brandis plans to repeal section 487(2) of the Environmental Protection and Biodiversity Act and “return (it) to the common law”. His actions follow comments by Prime Minister Tony Abbott andTrade Minister Andrew Robb.The crux of the Federal Court’s decision on the Carmichael mine was that Environment Minister GregHunt breached the Environmental Protection and Biodiversity Conservation (EPBC) Act by failing toconsider conservation advice provided by the Department of Environment on the impact of theproposed mine on two vulnerable species – the yakka skink and the ornamental snake.Attorney General George Brandis believes a recent court decision backing an environmental group isan illegitimate use of the law. Is he right? AAP/Lukas Coch7/20/2020 The government vs the environment: lawfare in Australiahttps://theconversation.com/the-government-vs-the-environment-lawfare-in-australia-46205 2/3According to the government, this decision represents a form of illegitimate green “lawfare” by groupsthat, according to Brandis, “have no legitimate interest other than to prosecute a political vendettaagainst development and bring massive developments … to a standstill.”Robb claims this decision could have a negative impact on current free trade agreement negotiationswith India. The government’s proposed solution is to tighten the rules for standing under the EPBCAct.Currently standing is provided for under s 487, which allows for legal action by a “person aggrieved bythe decision” and extends the definition of this term to include individuals or organisations that haveengaged in “a series of activities related to the protection or conservation of, or research into, theenvironment” within the two years preceding the decision. It is this extended definition that allowedthe Mackay Conservation Group to initiate legal action against the Adani mine and that our government intends to amend.If this proposed amendment passes, the scope for public interest litigation in defence of theenvironment will be seriously curtailed in Australia. Furthermore, this restrictive approach would alsocurtail the rule of law. The Adani case was settled after Hunt conceded he had failed to abide by thelaw in granting the approval – that is, he rushed it. The judgement merely requires the government toabide by its own laws. Hunt is free to re-approve the mine within weeks.A revealing contrast to the government’s reaction to this decision is their lack of response to a similarcase from earlier this year – Metgasco Limited v Minister for Resources and Energy. In this case,Metgasco successfully challenged the NSW Resources Minister, Anthony Roberts’ decision to cancelMetgasco’s licence to drill at Bentley due to its failure to undertake genuine and effective communityconsultation. The court found that Roberts had acted outside the law and did not have the power tocancel Metgasco’s licence on non-environmental grounds.From its failure to decry the Metgasco decision, we might deduce that the government supports thecapacity of mining companies to challenge government decisions, while wishing to deny the sameright to community groups. The key difference appears to be the kind of interest these parties have –for one it is financial, for the other it is the public interest in preserving the environment.Unfortunately, the evidence indicates that the government does not share this interest in preservingthe environment. The Guardian reports that only 1.3% of applications under the EPBC Act arerefused, with that figure dropping to just 0.4% when it comes to applications from the resourcesindustry. As Greens senator Larissa Waters has argued, “fundamentally, the laws aren’t set up toprotect the environment, they are set up to facilitate development”.Public interest environmental litigation has a long tradition throughout the world. As recently asJune, a landmark Dutch case resulted in the government being ordered to cut its carbon emissions byat least 25% within five years. The applicants successfully argued that the government was negligentfor “knowingly contributing” to a breach of the two degrees centigrade maximum target for globalwarming. In the United States, the Sierra Club’s Environmental Law Program also uses public interest7/20/2020 The government vs the environment: lawfare in Australiahttps://theconversation.com/the-government-vs-the-environment-lawfare-in-australia-46205 3/3Andrew Robb Greg Hunt Free trade agreement Carmichael coal mine Adani Group Lawfarelitigation to shut down coal-fired plants and mines across the country as part of its Beyond Coalcampaign.The government’s use of the term “lawfare” is inflammatory, but even if it were a correct descriptor itwould be a classic David and Goliath battle. If mining companies are free to use their financial clout toboth lobby the government and challenge unfavourable decisions in court, while the government itselfhas a track record of significant bias towards industry, shouldn’t the community also have the right toat least challenge decisions that clearly breach the law?

The government vs the environment: lawfare in Australia

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The government vs the environment: lawfare in Australia

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