The Language of Lawfare: Federal Government Moves Environment Amendments to Curb Court Actions

Wednesday 19 August 2015 @ 2.55 p.m. | Corporate & Regulatory | Legal Research | Trade & Commerce

In a Media Release of 18 August 2015, titled "GOVERNMENT ACTS TO PROTECT JOBS FROM VIGILANTE LITIGANTS", the Federal Attorney General has announced that the Federal Government intends to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) section 487 to restrict conservationists, green groups and in fact most citizens from challenging major developmental projects under Federal law.

The plan is to repeal section 487(2) of the EPBC Act and “return (it) to the common law” thereby removing the right of most citizens (environmental organisations in particular) to challenge developments (such as the Adani’s Carmichael coalmine) under Federal laws like EPBC Act unless they can show they are “directly affected”.

The Background

The move is seen as the Federal government's direct response to the decision of the Federal Court of Australia in Mackay Conservation Group v The Commonwealth of Australia (see our article Adani Coalmine Approval Overturned in Federal Court) with the Federal Attorney General saying in his Media Release that:

"Section 487 of the EPBC Act provides a red carpet for radical activists who have a political, but not a legal interest, in a development to use aggressive litigation tactics to disrupt and sabotage important projects.

The activists themselves have declared that, that is their objective – to use the courts not for the proper purpose of resolving a dispute between citizens, but for a collateral political purpose of bringing developments to a standstill, and sacrificing the jobs of tens of thousands of Australians in the process.

It is now for the federal Labor Party to show that it cares more about jobs than inner-city greens."

At the time of writing this article (19 August 2015), this legislation is, according to the Federal Attorney General, to be introduced into the Parliament for ". . . passage through the House of Representatives later this week".

In fact, this legislative step announced by the Federal Attorney General is not the first of its type to emanate from a conservative government in Australia in recent times, for example, in passing the Workplaces (Protection From Protesters) Act 2014 (TAS  Act No 25 of 2014 ), the Tasmanian Attorney General Dr V Goodwin said such laws were necessary because:

“. . . there are radical environmental groups who make a hobby of spreading misinformation to markets with the aim of destroying Tasmanian jobs. Unlike the former Labor-Green government, we will stand up for Tasmanian jobs every day of the week.”

(For more see our article Tasmania Plans To Introduce Legislation To Allow Corporations To Sue Protesters For Defamation)

Nor is the Adani case the first Federal Court case to raise these issues, see for example, Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694, which also lead to amendments of the EPBC (see our article New CTH Environment Legislation Amendment Act 2015: Minister's Advice). A case where in deciding the matter Justice Marshall listed the critical issues for determination as being:

" . . . Whether, in deciding to approve the taking of the action, the Minister had regard to a document called 'Approved Conservation Advice for Sarcophilus harrisii (Tasmanian Devil)' and in the event of failure to do so, the consequences of such failure."

The Language of Lawfare

Essentially, it seems a pattern has emerged where actions taken under valid legislation, in a legally appropriate way and won by environmental groups can be characterised, in the "language of lawfare" as it has been described by The Conversation in a recent article, as being the actions of "vigilante litigants", as being some form of ". . . aggressive litigation tactics to disrupt and sabotage important projects."

While on the other hand cases such as Metgasco Limited v Minister for Resources and Energy [2015] NSWSC 453 (24 April 2015), where the decision favoured a CSG mining group over environmentalists, by the court overturning a decision of the NSW government to suspend drilling have no such pejorative descriptions attached to them, (see our article Metgasco Ltd v Minister for Resources and Energy [2015] NSWSC 453: Compensation for Right to Drill).

Quite interestingly, the language of lawfare in use does not appear to be supported by the hard data, as a recent Guardian report appears to indicate:

"If the Indian mining company Adani is concerned that its beleaguered Carmichael mine will be halted by the government, it should take comfort in the numbers – just 2.2% of projects that require Federal environmental approval have ever been knocked back."

Further, the Guardian goes on to say:

". . . analysis of assessments made under the federal Environment Protection and Biodiversity Conservation Act since its inception in 2000 shows that 96.2% of projects – which include mining, ports and other infrastructure – have been given the green light, with conditions."

In effect indicating the EPBC Act legislation has not held up progress nor has it worked against development, and, if anything, has probably had the opposite effect.

What may be behind the Lawfare

The Conversation makes the point that:

The government’s use of the term 'lawfare' is inflammatory, . . ."

Indeed, a language captioned with the calls intended to attack its opposition, see the Federal Attorney General's comment that:

"It is now for the federal Labor Party to show that it cares more about jobs than inner-city greens.'

Or as the Tasmanian Attorney-General said

". . . Unlike the former Labor-Green government, we will stand up for Tasmanian jobs every day of the week."

However, inflammation and politics aside, the valid point is also made that change to EPBC Act will make for a totally unbalanced position in a legal scenario which ,already on the hard data, favours development. As The Conversation says:

"If mining companies are free to use their financial clout to both lobby the government and challenge unfavourable decisions in court, while the government itself has a track record of significant bias towards industry, shouldn’t the community also have the right to at least challenge decisions that clearly breach the law?"

Certainly you would hope that in a world where public interest environmental litigation is quite normal that Australia would not want to retreat to a 20 year old position, to a position pre-Franklin Dam in environmental law development.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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