19 November 2015
The Federal government has taken a further step in its plans to repeal s.487 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act), which currently extends the right to seek judicial review of decisions beyond those “directly” affected to people and organisations who have a recent history of involvement in conservation or research.
Today, Coalition members of the Senate Committee have handed down a report supporting the Government’s Bill to remove s.487, without holding hearings in relation to the proposal. Members of the ALP and the Greens released dissenting reports opposing the changes.
The extended standing provisions in s.487 reflect 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. For many environmental issues, from climate change to habitat destruction and loss of biodiversity to decreasing water quality, the impacts are not limited to adjoining residents. Instead, there is a broader public interest in ensuring that the environment is protected.
The proposal to repeal s 487 followed the victory by the Mackay Conservation Group (represented by EDO NSW) in the Carmichael Adani case. The Federal Court recognised that the Federal Minister had failed to adequately address the impacts of the proposal on listed threatened species, including the Yakka Skink. The Federal Minister conceded that he had failed to properly address those impacts. The case was, in fact, an example of the laws working well and ensuring that the required assessment process is followed.
Despite this, the Federal government has described the outcome as “legal sabotage”, “green lawfare” and “vigilante litigation”.
The Senate Committee report released today selectively focuses on the submissions of those supporting the changes, including the Minerals Council of Australia, and makes no detailed analysis of the issues raised in the more than 200 submissions opposing the changes, including from the National Farmers Federation and leading academics, regarding access to environmental justice, unfair pressure on adjoining landowners and the likely outcome that reverting to a “special interest” test for standing will in fact increase court time.
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. That is, less than half of one percent of decisions on controlled actions under the EPBC Act are challenged in court.
The comprehensive Hawke review of the EPBC Act, in considering s.487, stated:
these provisions have created no difficulties and should be maintained”.
The Senate Committee report provides no arguments to refute this conclusion.
EDO Tasmania strongly supports the rights of communities to take action to ensure that environmental laws are enforced. We hope that the Environment Protection and Biodiversity Conservation (Standing) Bill 2015 is rejected by the Senate.