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Byron Shire
April 17, 2021

World Heritage parks ‘put at risk’ by law changes

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Protection for the north coast’s World Heritage national parks and communities surrounding them would be limited under under the Abbott government’s proposed changes to federal environmental law.

The Environmental Defenders Office (EDO) also says the controversial plan by cabinet to repeal a key provision of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) would deny access to the courts by communities and environmental organisations.

The coalition’s move follows the successful legal challenge against the contentious mega coal mine in Queensland proposed by Indian company Adani.

Abbott ministers fuming at the court decision then accused conservation groups of ‘sabotaging’ the project.

But the Environmental Defenders Office (EDO) says any repeal of the provisions in the Act was a retrogade step.

EDO northern rivers branch principal lawyer Sue Higginson said it was a fundamental aspect of environmental law for communities to be able to hold ‘governments to account’.

Ms Higginson said it was exactly those provisions the government was set on removing which protected the north coast’s World Heritage national parks if they should be threatened by any proposed major development or mining project.

Ms Higginson told Echonetdaily that north coast miner Metgasco once proposed a controversial coal-seam-gas pipeline from the northern rivers to Queensland, via the Border Ranges National Park, which had since been abandoned.

She said it was an example of a project which would have fallen under the provisions of the law proposed to be ditched.

‘They are the exact laws which protect them (World Heritage national parks),’ she said.

’So if any mining company such as Metgasco has a project which impacts on the parks, north coast communities may be affected by the repeal of these laws, in that access (to the courts) will be made substantially more difficult,’ she said.

EDO NSW executive director Jeff Smith said the provision in question, section 487, currently extends access to the courts ‘to Australian people and organisations who have a recent history of involvement in conservation or research’.

‘The provision rests on the public nature of environmental law – that is, the right of the community to enforce Australia’s environmental laws and to hold decision-makers and corporations to account,’ Mr Smith said.

‘The announcement about repealing section 487 has come in the wake of the victory by the Mackay Conservation Group in the Carmichael Adani case. EDO NSW represented the small community group in these proceedings.

‘In this matter – and this is the crucial part – the Federal Environment Minister conceded that he had been in error in not taking into account the impact of the approval on two nationally threatened species. The Minister wrote to the Federal Court, asking it to set aside his decision.

‘We see the Carmichael case as an example of the Federal environmental laws working well.

‘In stark contrast, the Federal government has described the outcome as “legal sabotage”, “lawfare” and “vigilante litigation”.

‘These claims are without merit and quite extraordinary in light of the Minister’s concession that he got it wrong.

‘They also fly in the face of the operation of the EPBC Act. Over the past 15 years, there have only been around 30 judicial review challenges to decisions of the Minister on controlled actions under the Act.

‘This is out of over 5,000 actions referred to the Minister, with only 800 of those proceeding to the approval stage. In short, this means that less than half of one percent of decisions on controlled actions under the EPBC Act are challenged in court.

‘More broadly, there is no evidence to suggest the Act needs to be changed. In speaking about the very provision that the government proposes to repeal, a fulsome 10-year independent review of the Act said: “these provisions have created no difficulties and should be maintained”.

‘This conclusion should come as no surprise to lawyers and those familiar with the judicial system. All courts rightly have mechanisms in place to ensure that people cannot bring matters without merit – so-called “frivolous or vexatious proceedings”.

Effect of the proposed repeal

‘The mooted repeal would return Australia’s Federal environmental laws to the common law test of standing. This test only allows people who are directly affected or aggrieved by a development – such as those with a proprietary interest – to take legal action.

‘The development of environmental law in Australia – predominantly since the 1960s – has come about in no small part due to the inadequacy of the common law to protect the environment.

‘The proposed repeal would also mean that the community at large would have no recourse where the Federal Environment Minister makes a legal error – as was acknowledged in the Carmichael case.

‘And it would shift the focus of any Court proceedings to whether a person had a right to be there, rather than focusing on potential harm to the environment.

‘The EPBC Act is currently based on the assumption that all Australians have an interest in the health of the environment and the protection of our iconic places – the Great Barrier Reef, the Kimberley, the Tarkine – and the proper enforcement of our national environmental laws.

‘It also allows communities and conservation groups to act to save threatened species, as occurred with the litigation to stop Japanese whaling conducted by EDO NSW a few years back, representing Humane Society International.

‘The proposed repeal of section 487 would throw all this into doubt, turning back Australia’s environmental laws and returning us to a time when the environment was not recognised as requiring protection and communities were sidelined before the law.

‘This would be a retrograde step and would operate to the detriment of Australia’s environment. Hopefully, reason and common sense will prevail and the integrity of Australia’s environmental laws is maintained,’ Mr Smith said.

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