'Vigilante litigants' didn't stop the Carmichael mine, the law did
By Michael Bradley Posted 20 Aug 2015, 2:44am
It's extraordinary to watch our chief law officer, George Brandis, attack "vigilante litigants" for taking action against the Carmichael Mine. They didn't write the law, they just asked that it be enforced, writes Michael Bradley.
The Abbott Government, whenever it doesn't get its way, tends to react like a deranged puffer fish.
The trajectory is wearily familiar: the Prime Minister stalks out of his man-cave, asserts some facts that aren't and chucks a few incendiary word-bombs. His ministers, alerted by Twitter to what he's said this time, fill the following days with increasingly inflammatory commentary, before finally announcing some half-baked measure about which Cabinet will probably learn at the same time as the rest of us and well after the Daily Telegraph. Cue public outrage, media frenzy, backflip, denial, denial that the denial was a denial, etc litigation process.
So it is with the Carmichael coal mine debacle, which has scaled rapidly to maximum lunacy level with Attorney-General George Brandis' utterly extraordinary media release headed "Government acts to protect jobs from vigilante litigants".
Bear in mind, this guy is our chief law officer, protector of the rule of law and the integrity of our courts. The spittle is visible on the page, as he describes the Environment Protection and Biodiversity Conservation Act 1999 (that's Howard-made law) as allowing "radical green activists to engage in vigilante litigation to stop important economic projects".
On he rants, accusing conservationists of using "aggressive litigation tactics to disrupt and sabotage" projects with the objective of "sacrificing the jobs of tens of thousands of Australians".
You can almost see him sucking on his fountain pen with glee over his closing flourish - a jab at "inner-city greens". Ooh, masterful work, Minister. Note the deliberate use of language designed to conflate environmentalists with those other popular classes of "the other" - terrorists, asylum seekers, Muslims. It's so gloriously over the top, there's no point recounting what Tony Abbott and Greg Hunt had said earlier.
Yes, yes but isn't this stink about some court decision temporarily stopping Adani's monster coal mine because Hunt didn't properly consider its impact on the yakka skink and the ornamental snake? Surely, he'll now consider it and decide that the manifest benefits of coal for humanity outweigh any reptilian interests anyway?
No doubt he will. Unfortunately, it's looking increasingly unlikely that Adani will be able to proceed, for economic reasons (dud coal price and the lack of financiers), which is good news for the skink and environmentalists but bad news for a Government desperate to prove that Australia's future still lies firmly in the fossil-fuelled past. The economic reality is just one of those fact-type things that this Government does not allow to get in the way of its preferred narratives. It will just double down again.
The problem, as Abbott, Hunt and Brandis have been colourfully explaining, is not that it would cost more to dig up this coal than anyone will pay for it; the problem is radical greenies using the courts for sabotage. Cut them out of the deal and, as Abbott keeps repeating, 10,000 jobs will be created (wrong by a factor of 7 –Adani's own expert says the total is 1464 jobs) and 100 million people in India will get electricity (could be tricky when India's energy minister says they plan to stop thermal coal imports altogether within three years).
Some more inconvenient facts. Section 487 of the EPBC Act is not, as Brandis described it in the Senate, "a red carpet for people who want to stop development, to game the system".Â
In fact, it was carefully drafted to define who can bring court action to stop a project on the grounds of environmental or endangered species protection, beyond those with a direct economic interest. Individuals and organisations can only bring action if they are Australian and have for the previous two years engaged in activities for protection or conservation of, or research into, the environment. Further, these activities must be included in the objects of an organisation that wants to sue. You can't set up shop just to go to court.
What about the litigants in the Carmichael case in particular? The applicant is the Mackay Conservation Group. It was established 30 years ago. It has more than 1000 members. Its board includes such radical inner-city greenies as its president Dr Michael Williams, who has lived in Mackay since 1980 and works as Director of Child & Adolescent Health at Mackay Base Hospital. You can check out the other loony vigilantes of the MCG.
The case brought by the MCG was run by the Environmental Defenders Office NSW, another renowned group of crazed vexatious litigants also celebrating its 30th birthday this year. It was substantially funded by the Commonwealth until this Government pulled its funding in 2013.
So, not exactly the kind of enviro-terrorists you might have been expecting from Brandis' hyperbole. And there is one last fact to consider: the Federal Court's orders stopping the Carmichael project were consented to by Adani and the Environment Department. Why? They conceded that the Minister's approval was fatally flawed because he ignored his own Department's advice on the endangered species. That is, the approval was against the law.
The Mackay Conservation Group didn't make that law. It just asked that it be enforced. What exactly is Brandis getting so huffy about? Pesky citizens insisting that the law not be broken. He could, of course, as you might expect a responsible Attorney-General to do, argue that the law that was broken doesn't strike the right balance between economic development and environmental protection, and should be changed. That'd be unremarkable. But no - the logical consequence of his announced plan is that, next time this law is broken, there will be vastly less chance of it being found out.
