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Environmental legal aid slashed when Australia needs it most

When residents from the tiny town of Bulga won a three-year court battle to stop Rio Tinto expanding an open-cut coalmine beside them, it was hailed as a victory for David over Goliath. Yet the type of…

The WA Environmental Defenders Office was involved in the legal challenge to planned gas processing at James Price Point. Cortlan Bennett/AAP Image

When residents from the tiny town of Bulga won a three-year court battle to stop Rio Tinto expanding an open-cut coalmine beside them, it was hailed as a victory for David over Goliath. Yet the type of legal aid that helped those Hunter Valley residents last year may soon be much less widely available.

The right of individuals and local communities to challenge contentious development projects has been dealt a severe blow by the federal government’s axing of A$10 million in funding for Environmental Defenders Offices (EDOs), which provide not-for-profit legal aid.

During my 17 years as a judge in South Australia’s Environment, Resources and Development Court, I presided over several cases that would never have made it to court without the assistance of EDOs.

But from July 1 this year, the nationwide network of nine state and territory EDOs will be left dangling by a thread, with several offices potentially having to close as their future becomes unviable.

Affordable legal option

While this has been painted as necessary budgetary belt-tightening and a realignment of legal aid priorities towards “the vulnerable and disadvantaged”, it is also true that EDOs have been the target of industry lobbying. The New South Wales Minerals Council campaigned for the withdrawal of state EDO funding, and argued before last year’s federal election that public funds should not be used “to support extreme anti-mining activists”.

EDOs are often the only affordable legal option for communities and landholders who find themselves confronted with major development projects like mines, natural gas processing plants, coal seam gas fields and shale gas wells, or with new government planning policies that threaten citizen rights, local biodiversity, indigenous culture, farmland, clean waterways and other public interests.

Community groups, represented in court by EDOs, have succeeded in either stopping or imposing more appropriate conditions on a range of development projects that threatened their local environments. EDOs have given legal aid to a range of environmental causes including Western Australia’s proposed gas hub at James Price Point, Tasmania’s Tarkine forests, and the fight against Japanese whalers.

Without the EDOs, communities will have an even harder time competing in court with corporations and government agencies, armed with the best legal teams their deep pockets can afford.

Citizens seeking to stand up to them have no such resources, and in court can put at risk their own assets, including their homes, while trying to challenge powerful vested interests. Publicly funded EDOs have filled a gap where most public-minded citizens do not have the means to engage private law firms, providing expert legal support at modest or even no cost.

All of this is now in peril, and communities and the environment face being left without the means to access justice. At a stroke, the government has demolished half the total funding base for EDOs.

The offices in Western Australia, South Australia, Tasmania, the ACT, Northern Territory and northern Queensland each get 80-90% of their funding from the federal purse and face the prospect of closure over the coming year. Other EDOs in NSW, Queensland and Victoria have a mixture of law society, state government and private funding, but will nevertheless be forced to reduce their services.

Community-based public interest environmental law in Australia is now facing the biggest crisis of its three-decade history.

Legal counterparts

The first EDO was established in New South Wales in 1985, and the concept was embraced in other states and territories from 1992 onwards. Federal funding first began in 1995.

Created to defend the environment and heritage under law, and modelled in part on North American counterparts like the famous Sierra Legal Defense Fund (now Earthjustice), and the Canadian Environmental Law Association, the EDOs are nonetheless a distinctively Australian institution, one that enjoys strong support within the legal fraternity and the general community.

EDOs have never gone free of political controversy. In 1999 the Howard government placed a “litigation ban” on Commonwealth funding, which meant that EDOs could only use taxpayer funds for services like public education, community engagement, and policy and law reform. This ban stayed in place for nearly eight years, until it was lifted by the Rudd Labor government in 2007.

Now the new Abbott government has gone a lot further by cutting federal funding completely.

It is worth noting that this decision also coincides with:

Tipping the scales

As I and anyone else familiar with the legal system knows all too well, access to expert counsel is not something that everyone can afford.

Australians and our environment will suffer if there is no real means for the courts to review development decisions against environmental policy and the evidence. Retaining the means of access to justice in relation to our environment is critical.

The downsizing or demise of Australia’s various EDOs could tip the balance even more in favour of development at the expense of our environment and communities without deep pockets. In doing so, it puts places like the Great Barrier Reef and Tasmania’s Tarkine wilderness at greater risk – and makes it that much harder for people in small towns like Bulga to have their day in court.

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17 Comments sorted by

  1. John Newton

    Author Journalist

    '...public funds should not be used “to support extreme anti-mining activists”.
    Those being any person or group who disagrees with the mining industry.

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  2. Michael Burns

    Editor

    Extreme members of the NSW Minerals Council destroying local communities sounds nearer to the mark!

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  3. Michael Shand

    Software Tester

    Brilliant Article, really disturbing but not suprising given the government we have

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  4. Sue Lovell

    Academic at Griffith University

    A terribly sad article. If as you say the EDO 'enjoys strong support within the legal fraternity' can't the legal fraternity speak up more loudly against this attack on justice and democracy? We should ask Apple for environmental sponsorship - they get out of paying taxes on Australian sales!

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  5. David Arthur

    resistance gnome

    This article is timely: I realised this morning that Australia has relatively little meaningful environmental safeguards within any of its jurisdictions; what it's got is great swadges of greenwash.

    Perhaps this is because there are no reserves of political power in Australia that have developed since environmental awareness emerged. For example, all wings of Australia's ruling LibLab Party hold true to their pre-environmental awareness roots.

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    1. David Arthur

      resistance gnome

      In reply to Sue Lovell

      Vote Green - provided they price carbon via a revenue-neutral consumption tax on fossil fuel, okay (http://www.carbontax.org/).

      If they don't price carbon that way, they have as much economic credibility as the corporation-driven LibLab Party, as set out in exchanges between myself and Michael Wilbur-Ham after
      1) "Broken record acts as wake-up call", https://theconversation.com/broken-record-acts-as-wake-up-call-13914, and
      2) "Labor keeps ETS compensation for big power users - why?", https://theconversation.com/labor-keeps-ets-compensation-for-big-power-users-why-16120

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    2. Sue Lovell

      Academic at Griffith University

      In reply to David Arthur

      They would have their work cut out for them to find a satisfactory 'solution' to what is a multi-faceted and complex problem, but I suppose my rather flippant comment was meant to say that at least ideologically the Greens offer more hope. Even if there were simply more opposition to the LibLab two-step foxtrot that is going on, there would be some hope. They don't have to govern in their own right to be in a position to call the government to account in ways that it is very difficult for you and I to do - as you have found out I gather.

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    3. David Arthur

      resistance gnome

      In reply to Sue Lovell

      "... a satisfactory 'solution' to what is a multi-faceted and complex problem,"

      The irony is, starting with a revenue-neutral consumption tax on fossil fuel will is an extremely simple solution, that cuts through the fog of confusion to the essence of the task, which is to guide and inform the progress of each and every fossil fuel user.

      So long as the Greens are perceived (mistakenly, in my view) as fringe-dwellers on economics, they've got a problem which the Loons of the LibLab Party will exploit.

      The discussion between myself and Michael Wilbur-Ham after Joel Pedro's "Explainer: what is happening to Antarctica’s ice?" https://theconversation.com/explainer-what-is-happening-to-antarcticas-ice-13684 is where I first attempted to engage a Green-inclined voter in the issue of economic credibility.

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  6. Sandor von Kontz

    farmer

    Thanks for the article and thanks to the EDO. Over the last 4 years we fought TransGrid's proposal of a new completely useless high voltage transmission line and actually stoped the line. Thisis ti a great proportion to the free and always available legal advice from the EDO.

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  7. Ben Marshall
    Ben Marshall is a Friend of The Conversation.

    Writer

    Another tick in a box on the IPA list. Remove the legal rights of anyone to question, check, take legal action or protest on environmental grounds, and even more profits can flow even more rapidly up to the 0.001% without interruption.

    Then tweak the visa laws so the miners can bring in overseas workers, pay them less, and keep Australians who may or may not belong to a unions out of the entire process.

    It's all going spendidly to plan. Oh, and we're about to vote in two more Coalition State premiers.

    The Right Wing should be dancing in the streets. I imagine some kind of awkward chicken dance with fixed rictus grins and stiff foot shuffling, red puffy faces snorting snot bubbles of glee as they imagine their share prices, forgetting entirely that they have grandchildren they love and care about...

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  8. diane morrissey

    author

    Without the help of the EDO our community action group, The Manning Alliance, would not have been able to stop a multi million dollar project by Transgrid to put uncessessary “upgraded” high voltage power lines through our pristine Manning Valley in regional NSW. A united town exposed that “gold plating” - where infrastructure is sold off and residents foot the bill with massively increased power bills- was helped hugely by the EDO. Mr Abbott is not only open for business to sell off this country, but hell bent on destroying our land and water in the process. We need to speak up, get out on the streets and lobby our politicians. (Those who aren’t in office waiting for a plum post polly job on a mining company board or similar.)

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    1. June M Bullivant Oam

      logged in via Facebook

      In reply to diane morrissey

      The NSW Government and the Federal Government are all working against the community, despite the spin when they say they care about us, the environment, our heritage and the "Australian People", it is only lip service, actions speak louder than words, this is another way they are looking after developers and big business have they got a petition.

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