The Attack.....
The
Australian,
22 June 2019:
A taxpayer-funded
network of environmental lawyers has been handed more than $2.5 million by
state governments, helping the group to clog up courts and launch dozens of
cases against gas and mining projects, including Adani’s Carmichael mine.
Environmental Defenders Offices
in NSW and Queensland were awarded more than $1m from the Berejiklian
government and almost $400,000 from the Palaszczuk government in 2017-18….
Resources Minister Matt
Canavan yesterday called on the states to deprive the green lawyers’ groups of
any more taxpayer funds.
“These EDOs are not
defending the public interest but pursuing a political agenda,” he said.
“As such, they should
not be receiving taxpayer support to destroy people’s jobs.”….
Leading business groups accused
the EDOs of engaging in “vexatious litigation” which is delaying projects for
years, damaging job-creation efforts and hindering the flow of royalties to
states and territories.
“Frivolous and vexatious
legal challenges to environmental approvals delay projects and threaten jobs
in regional Australia,” Minerals Council chief executive Tania Constable said.
An Australian Petroleum
Production & Exploration Association spokesman said the EDOs’ advocacy on
climate change was out of step with their apparent role as a community legal
centre for environmental cases.
“We have for some time
questioned the role of the EDO and its public funding,” he said.
The Response.....
NSW Environmental Defenders
Office (EDO NSW),
22 June 2019:
EDOs stand firm against
attacks
We are a community legal
centre of expert lawyers, proudly and unapologetically helping the NSW
community to use the law to protect wildlife, people and our planet.
Environmental laws
should not be for the few. They affect us all. Yet once again we are forced to
defend the community's access to justice against attacks by a fossil fuel lobby
aggrieved by the power our work provides to communities who seek to challenge
the lawfulness and merit of their major projects.
EDO NSW's litigation
work on behalf of our clients plays an important role, ensuring that people
have access to justice and are able to exercise their rights under Australian
law. People have a right to use the law to protect their family, homes and
environment. To be clear, as public interest community legal centres, EDOs do
not litigate on our own behalf, but represent clients (community groups,
Aboriginal groups and individuals) who may otherwise be unable to have access
to the justice system.
It’s disappointing to
see, yet again, the Minerals Council and Australian Petroleum Production &
Exploration Association demonstrating their lack of understanding of, and
respect for, the rule of law. At their heart, these claims are an attack on our
democracy and we should all be very concerned.
The fossil fuel lobby
has a track record of making the unsubstantiated claim that EDOs engage in
vexatious litigation, and frankly it’s getting tired. Despite being
over-utilised, this claim remains a troubling proposition. EDO NSW lawyers, who
include some of the best in our field, take our professional responsibilities extremely
seriously. Our 30 year track record is evidence of that. Not once in our
history have our clients’ cases been found to be ‘frivolous or vexatious’.
Underpinning most of our
litigation work is a question about whether the law has been complied with.
That decision-makers apply the law is a fundamental feature of our democracy.
Ensuring the law is complied with should be uncontroversial.
In other instances, our
work interrogates whether approving a project is – considering all the
circumstances – the correct or preferable decision. These are not simple
questions. The answer lies in the weighting of a range of different factors.
Our important work ensures that evidence proffered in support of a project is
thoroughly tested.
In a number of
instances, including in the recent case concerning the proposed Rocky Hill coal
mine, the economic benefits of the mine put forward by the mining company were
found to be overstated, based on the evidence put forward by both the
Government’s expert and our client’s. Equally the economic negatives of
that project - including social impacts and impacts on Aboriginal cultural
heritage - were found to have been understated by the mining company.
Litigation is a small
component of the work this office does on behalf of clients. When we do so, it
is only after application of our casework guidelines and detailed analysis from
senior legal experts to ensure there are merits in bringing a case.
EDO NSW also provides
the community with free legal advice and education - work that does see us
receive some State government grants. Our office operates a daily advice line
providing free advice on matters of environmental and planning law.
The NSW Government has
provided EDO NSW with funding for decades, irrespective of which party is in
Government. This demonstrates a bipartisan understanding of our role and
corresponding support for the provision of access to justice in this space -
that is, allowing members of the community to understand and seek advice about
NSW environmental and planning laws.
Our work relates to
ensuring that laws are applied correctly, and ensuring that evidence put
forward by project proponents is tested in an appropriate and independent forum.
Any changes to the law that erode community opportunities to participate in
environmental decision-making would be very concerning. This could easily be
seen as a blatant attempt to further prioritise the rights of coal mining
companies over the rights of communities, including farmers, eco-tourism
operators and others.
David Morris
CEO - Solicitor
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