Lawyers Demand Brandis Revoke ‘Vigilante Litigation’ Slur After Federal Court Loss

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Public interest law firm Environmental Justice Australia has called on George Brandis to revoke comments he made yesterday and admit they were an error of judgement after the Attorney-General accused a green group of engaging in “lawfare”.

Brandis levelled the comments at the Mackay Conservation Group, which recently made a successful bid in the Federal Court to have environmental approval for Adani’s Carmichael mega-mine in Queensland’s Galilee Basin set aside because the Environment Minister failed to properly administer environmental law.

The mine would be the largest in Australia’s history and produce four time the carbon emissions of New Zealand if it goes ahead. The proposal covers more than 200 square kilometres and Adani’s project is seen as a key “first mover” that would pave the way for other, similar mines in the untapped basin.

Brandis said he was not questioning the Federal Court’s decision, but rather the rules for standing under the omnibus environmental law that allowed the Mackay Conservation Group to successfully bring its challenge.

Following comments made earlier this month by the Prime Minister, who said that anti-coal activists were using the courts to “sabotage” industry, Brandis said he believed the law currently allows for “vigilante litigation by people whose aim is to game the system”.

Ariane Wilkinson, a lawyer at Environmental Justice Australia, hit back this morning arguing that Brandis’ comments are “effectively saying government ministers should not be held accountable for failing to follow the law”.

The government did not wait for a court decision after the Mackay Conservation Group brought their case — which pursued a number of legal arguments against Adani — instead conceding defeat because Environment Minister Greg Hunt had failed to properly consider a ‘conservation advice’.

This is a special type of report designed to inform the minister’s decision making about endangered species, which Hunt failed to do for two species, the Yakka Skink and the Ornamental Snake.

 

 

The court loss was immediately dismissed by the Department of Environment, which was responsible for the bungle, as a “technicality” that would be overcome within two months.

The Carmichael mine has been in the pipeline for five years now, and with its Federal Approval rescinded it currently has no environmental approvals whatsoever, and no authority to undertake on-ground works to advance the project.

Over recent months, amidst an exodus of major financial institutions which are refusing to back the $16.5 billion project, Adani has been laying off contractors and reconsidering its budgeting and timelines.

Striking a similar tone to the Prime Minister, Brandis claimed over the weekend that the nation’s environmental legislation meant “virtually anyone” had legal standing to bring cases against developments, provided they had taken part in conservation or research into the environment in the last two years.

The “statutory language is extremely loose” and the Act “provides a red carpet for vigilante litigation,” Brandis said.

A spokesperson for the Mackay Conservation Group said the organisation was not “Johnny come latelies” and had been involved in scrutinising issues related to the Carmichael project since as early as 2006.

They said the group had been particularly interested in groundwater issues, the mine’s impact on the endangered Black Throated Finch, and that it had been involved in providing submissions throughout the entire approvals process.

“The whole worry down the road is what happens if your remove that; what happens to the public interest cases which cannot be brought if that section is tightened,” the spokesperson said.

“It basically denies the public the right to explore public interest issues and review these large projects we’re getting now.”

If the case had been vexatious or frivolous, they said, it would have been thrown out with costs against Mackay Conservation Group.

In his broadside, aired on Sky News over the weekend, Brandis took Abbott’s line that activists were effectively saboteurs, arguing they are “determined to wipe out Queensland’s biggest industry”.

“I think the Adani case has shown why it’s very important that the courts not be used as a forum for vigilante litigation by people whose aim is to game the system,” Brandis said.

“[They] have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments, on which in this case some 2,600 jobs depended, to a standstill.”

Brandis is “urging [his]colleagues to deal with this matter” — a tactic likely to be endorsed by Abbott, who said that as a matter of principle big coal projects must be favoured — but Wilkinson said that “the Australian community have every right to access the justice system [and]this case is a great example of democracy in action”.

In a separate legal action in April Adani’s own expert witness conceded that — far from the 10,000 jobs Adani and Abbott have claimed the project will deliver, and still lower than the 2,600 Brandis has now adopted — the company’s mine and rail projects would create just 1,464 jobs.

The port component of Adani’s vertically integrated plans, which include what would be the largest coal terminal in the world, was not considered in that analysis.

In relation to the Federal Court case Wilkinson described Brandis’ comments as “another example of the power the mining industry wields over the government”.

“The government’s outrageous response is to back this dying project and seek to remove the laws that protect the environment,” she said.

”His comments are effectively saying government ministers should not be held accountable for failing to follow the law.

“We need to have the highest standards of ministerial accountability to safeguard against corruption.”

Thom Mitchell

Thom Mitchell is New Matilda's Environment Reporter.

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