The growing ‘lawfare’ threat

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In recent days senior federal ministers have sounded warnings about the use of the legal system by environmental activists to derail major projects, especially in the natural resources sector.

Over the weekend, Attorney‑General George Brandis decried the use of the courts ‘as a forum for vigilante litigation by people whose aim is to game the system, who have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments … to a standstill.’

Of particular concern to Brandis was the Federal Court overruling federal government approval for Australia’s largest coalmining project, located in central Queensland. The Court ruled that the environment minister Greg Hunt had not properly considered advice about the effects of the project on two threatened reptile species, in what came as a big win for environmentalist litigants funded by the likes of GetUp!

A few days earlier the trade minister Andrew Robb referred to the same case:

In the last week, we’ve seen a decision overturning an approval for a project involving a major Indian investment in Australia. Where the reason was not the substance of environmental outcomes – the reptiles in question were the subject of specific conditions in the approval – but narrow procedural grounds. It was ‘lawfare’ brought by activist groups to whom the skink is simply a patsy. They just wanted to kill the project because they don’t like fossil fuels.

Brandis referred to the generous terms under which objectors to projects subject to federal environmental approvals can challenge ministerial determinations, and his worry might be that such terms could unleash a flood of project killing legal stoppages in future.

The federal Environment Protection and Biodiversity Conservation Act (EPBC Act), and the enormous regulatory burdens it is imposing upon the Australian economy, won’t disappear anytime soon.

So, this means only roundabout solutions are available to diminish this new eco-NIMBYism threatening to derail the fulfilment of Australiaʼs competitive advantages in energy and resources.

The Attorney-General talks about tightening the ‘aggrieved persons’ provisions of the EPBC Act concerning who can legally challenge federal environmental approvals, but broader changes might also be needed.

Governments could take a very hard look at eliminating ‘sock puppetry’, whereby politicians force taxpayers to fund activists and lobbyists whose activities harm the interests of the very same taxpayers in their capacities as consumers and producers.

A more vigorous intellectual defence of conventional coal fired energy wouldn’t go astray, either.

In a liberal democracy individuals and groups are free to advocate for their pet causes as they wish, and that does include calling for the preservation of the yakka skink and ornamental snake.

But frivolously dragging already heavily regulated resources project proponents through the courts is in nobody’s best interests.

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