Changes to federal laws bad news for activist environmental litigation

civil-litigationIt appears that the government is going ahead with plans to amend federal environmental laws to remove special privileges for environmentalists to conduct frivolous litigation.

Currently, section 487 of the Environment Protection and Biodiversity Conservation Act 1999 reverses the common law position on who can participate in litigation by dangerously expanding the meaning of an ‘aggrieved person’ under that Act.

Although some have defended the law by declaring ‘every citizen has a right to resort to ‘lawfare”, section 487 only grants the benefit of the law to those individuals and groups who ‘engaged in a series of activities… for protection or conservation of, or research into, the environment.’

This privilege invites activist litigation from those who merely need to have what amounts to a philosophical disagreement with economic development. This was most recently seen where a decision to approve a $16 billion mine in central Queensland was successfully challenged by the NSW Environmental Defenders Office for what amounted to a bureaucratic technicality.

Traditionally, for a person to be a participant in litigation, the law – sensibly – requires a party to have a sufficient, and not-distant, interest in a matter. This position, reflected in the likes of the Administrative Decision Judicial Review Act 1975, truly gives all Australians the same right to defend their own interests in court. The EPBC Act gives a leg-up to cashed-up environmentalists to unfairly burden the legal system.

In a free society, individuals and groups are more than welcome to advocate for environmental causes. However, that should not extend to the court room, where distant third-party activist groups essentially have a special right to challenge, and potentially delay projects they merely dislike.

As Mikayla Novak explained on Monday, there are a number of problems that deserve attention (for instance, the Mackay Conservation Group, which was represented by the NSW EDO, supposedly received $150,000 from Queensland taxpayers between 2012-15). However, a repeal of section 487 of the EPBC Act would appropriately bring consistency to the law, and should be welcomed.

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