The War On The Law: Who’s Afraid Of Green Lawfare?


Government and media are trying to have their environmental vandal cake, and eat it too. Nicola Silbert explains.

As the canon of court cases regarding the Adani Coalmine continue to expand, the commentary surrounding these cases is becoming more venomous.

The UN Special Rapporteur on the situation of human rights defenders recently noted the ‘vitriolic’ language used to refer to environmental litigation.

The frequent accusations of ‘Green Lawfare’ asserted by politicians and the media is the clearest example of this vitriolic language. But these people mustn’t be looking too closely – because the whole concept of ‘Green Lawfare’ falls to pieces under the slightest scrutiny.

sparkke-new-matilda-vAccusations of ‘lawfare’ claim that environmental defenders have an improper purpose for bringing a case to the courts. The word itself is problematic as the ‘law’ implies a legitimate means of defending one’s interests. But playing with the word ‘warfare’ suggests that environmental groups are insidious outsiders with interests that conflict with the democratic system.

Although some activists like to use war-like language, the analogy here is being used to alienate the public by portraying environmental groups as unlawful. Such tension as implied between this perceived unlawfulness and the law as a legitimate method of defence is irreconcilable in the Australian context.

Those using the concept of ‘lawfare’ present themselves as ardent protectors of the court system, preventing it from the abuse and wastage of malicious tree-huggers. But in doing so, they undermine the very system which they purport to defend.

Ignoring the incredible hypocrisy of such attacks, they ridicule the Australian Courts’ complex structure, which is designed to prevent abuse of process. They are not only attacking environmental groups, but attacking the court system itself as failing to dismiss improper claims.

The notion that politicians must rush to the aid of the judiciary in stopping environmental cases is not only incorrect, it is embarrassing to the judicial system.

Attorney General George Brandis. (CeBIT Australia, Flickr)
Attorney General George Brandis. (CeBIT Australia, Flickr)

These valiant ‘protectors’ of the law argue that “[environmental]groups don’t intend to win, they’re not playing to win.’’ They argue the Adani court cases are used to delay mining until the investor leaves, tired of awaiting their opportunity for exploitation. These politicians and journalists could not be more wrong.

Environmental defenders not only have every intention of winning, but if there were no possibility of success, the cases would have been thrown out of the courts long ago. If environmental groups are so obviously wrong, then why is does it take their well-resourced opposition so much time, money and political leverage to expose them?

Wins by environmental defenders in the courts are necessary to create new precedents. If we cannot rely on our legislature to protect environmental interests, we will turn to the courts, which have a history of shattering the status quo of politics. This is not an abuse of process but a legitimate application of the law.

We must ask those dismissing the Adani cases as ‘Green Lawfare’ – if it is illegitimate to use the court system to present our environmental concerns, then what method is appropriate? Having defunded the relevant community legal centres, created unworkable standing laws and written legislation under the keen lobbying of interests adverse to the environment, partisan politicians and media now seek to delegitimise the environmental groups who manage to jump these hurdles.

In doing so, they are removing one of the only perceived legitimate methods of environmental defence. If they won’t let activists use the court system, then they should not disparage environmental defenders when they resort to more ‘unsavoury’ methods of activism.

Last month, the Special Rapporteur on the situation of human rights defenders called on the Australian government to recognise the role of environmental groups in strategic litigation.

This starts with recognising the democratic right of environmental activists to the courts. It is outrageous to delegitimise this most basic use of the legal system.

Nicola is a final year Law and Science student at Monash University.