I have had cause recently to look up the meaning of the word “aggrieved”, in response to my own discontent about the Australian Federal Government’s proposal to change environmental laws. The result has been indignation on my part, and given that this is a synonym for aggrieved, I am aware that the situation I find myself in is both linguistically and legally confusing.
Incredibly, I find myself on the same side of the argument as Alan Jones, a radio shock jock with whom I almost always disagree. I cannot decide how I feel about this, but it is clear to me that something has gone terribly amiss.
This is lawfare
What is going on?. The Australian Federal Government was embarrassed last month when a small environmental group was successful in a legal challenge against their approval for the proposed Carmichael Coal Mine. The Environmental Minister had failed to present documents showing how they would ensure protection of two vulnerable species: the Yakka skink and the Ornamental snake.
Adani, the company planning the development, quickly released a statement calling it a “technical legal error”. In a sense this was correct, except that the rushed approval pointed to a failure of the Environment Department to carry out its job with due diligence.
Such suspicions were confirmed when the Prime Minister accused environmental groups of engaging in “lawfare” and the Attorney-General responded to this embarrassment by proposing to change the key federal environmental legislation to protect us from “vigilante litigants”.
The Environment Protection and Biodiversity Conservation Amendment Bill seeks to remove Section 487 of the EPBC Act, which extends the definition of “person aggrieved” to people involved in environmental conservation or research activities. This means that under the current legislation, as an environmental researcher, I have the power to challenge the Australian government. If the bill passes, the definition of aggrieved reverts to a common law definition, whereby only people directly affected by proposed developments will have the right to make a legal challenge.
This is a terrible idea for several reasons. Individuals directly affected by development are unlikely to have either the expertise or the financial capacity to mount a challenge on behalf of the environment. How would a farmer or land holder know that their strongest allies might be unknown but vulnerable species such as the much maligned snake and skink? How could researchers or concerned citizens who foresee significant environmental damage have a voice?
Environmental law as seen by the Australian public
I am not alone in my dismay about this situation. A review of the EPBC Act undertaken in 2008 not only did not conclude that we needed to worry about litigation, but suggested that it would be desirable to “improve transparency in decision making and provide greater access to the courts for public interest litigation”.
Current environmental legislation has not stopped large numbers of developments. A small fraction of projects have been legally challenged and only a few of these were successful. As Alan Jones says in an advertisement supported by Lock the Gate Alliance, the proposal to amend the EPBC Act is “divisive, it isolates us, and we are not allowed to care”.
Our environment, by definition, is more than just our own backyard. Many people who are concerned about large scale coal mining at this time are thinking about carbon emissions, they are worried about long term climate change and rising ocean levels.
If you think that the fight for coal is not relevant, consider the recent release of the Minerals council of Australia television advertisement. Apparently, coal is so amazing it “can create light and jobs”.
Unfortunately, we cannot challenge a development on the basis of its planetary impact. Fortunately, we can still challenge development that threatens local flora and fauna. But if this right is removed and the only legal reason left for making such a challenge is that it harms the health or finances of individual humans, our environmental legislation will become a joke.
Removing my right to be an aggrieved person is the goal of the proposed legislation. I can be unhappy, resentful, annoyed and vexed, but losing my legal right to express my disdain feels like the ultimate betrayal.
If you are feeling aggrieved yourself, or if you are just so startled that Alan Jones and I can agree that you think something really must be done, you can write to your minister or sign this petition with the Environmental Defenders Office.
Susan Lawler has received funding from the Australian Research Council in the past.
Authors: The Conversation