Angry farm organisations have learned they will be caught by changes
to federal environmental laws aimed at stopping “environmental
saboteurs” using the courts to delay big projects, but agriculture
minister
Barnaby Joyce says some individual farmers may not.
After the surprise announcement of major changes to federal
environmental law on Tuesday, the Abbott government spent much of
Wednesday making conflicting statements about which part of the laws it
intended to abolish.
But by the day’s end it confirmed it would try to repeal all of
section 487 of the Environmental Protection and Biodiversity
Conservation Act – contrary to an answer given by the responsible
minister, attorney general
George Brandis, just hours earlier, and contrary to confidential speaking notes mailed to all MPs that morning.
The clarification horrified farm groups because many farm
organisations will also be denied standing to challenge federal
environmental approvals in the court and this could stymie several
planned challenges to federal approval of the controversial $1.2bn
Shenhua Watermark coalmine on the fertile Liverpool Plains in NSW.
Any person wanting to mount a challenge would have to prove they had been directly and personally adversely affected.
Joyce, who holds the northern NSW electorate in which the Shenhua
mine is proposed and who had earlier denied that farm groups could be
affected, said late on Wednesday he now believed only “farmer fighting
funds” would still be able to bring challenges because they could
represent farmers who “were on the same aquifer or connected aquifers”
and would be seen to have a legitimate interest.
Joyce avoided answering a question about his support for Shenhua
Watermark during question time Wednesday, but later told Guardian
Australia: “I’ve never supported the Shenhua mine and my opposition to
the mine remains.”
The government now says it will abolish all of section 487 of the
EPBC Act, but confidential speaking notes, circulated to government MPs
on Wednesday to help them answer media questions, said the government
intended to repeal only section 487(2) of the act and Brandis made the
same claim on Wednesday in the Senate.
The proposed changes were made in response to the
federal court decision
this month to overturn the approval for Adani’s proposed $16bn
Carmichael coalmine in Queensland, delaying the project for a few weeks.
The government insists the changes to the law will stop only what it
calls environmental “vigilantists” and “vandals” and not farm groups.
According to Joyce the Shenhua mine is a “far different proposition”
from the Adani mine because it is located on a fertile farming plain.
According to lawyers expert in the operations of the EPBC Act, the
amendments proposed by the government would leave both environmental and
farm groups bogged in lengthy and expensive legal proceedings to decide
whether or not they had the “standing” to take legal action, and will
mean many of them wouldn’t.
The proposed amendment, to be introduced on Thursday, appears likely
to be defeated in the Senate. Labor and the Greens have said they would
not support it. Independent
Queensland
senator Glenn Lazarus and Palmer United party senator Dio Wang are also
unlikely to vote for it and independent Nick Xenophon has said he is
“very wary”.
The prime minister,
Tony Abbott,
continued to try to make political capital from the issue on Wednesday,
by insisting it proved that only the government cared about “jobs and
growth”.
National Farmers’ Federation vice president Fiona Simson said it was not clear what the government was trying to achieve.
“The Adani decision seems to have been caused by either Adani or the
department not applying the law properly, but then, suddenly and with no
warning or consultation, we get this put forward … we prefer
evidence-based policy making.”
Brent Finlay, NFF president, called for the law to be delayed until the impact on farmers was understood.
“It
is critical that farmers have access to the court system to ensure
their interests are fully considered during the EPBC assessment process.
It is impossible to understand how the standing of farmers and their
representative bodies will be impacted under these changes without
seeing the proposed changes,” he said.
Tim Duddy, local farmer and the chairman of the Caroona
Coal
Action group lobbying against the Shenhua mine, said the change would
mean even a “directly affected” farmer would be risking their farm if
they tried to take a public interest case because adverse costs could be
awarded against them and because the issues upon which a complaint
could be based would be so limited.
Legal advice suggests a farmer could only take an action if their
legal rights or business interests were affected. Living on a
neighbouring farm might not be sufficient.
As the government began talks with crossbench stakeholders and
senators, sources said different ministerial offices were “at sixes and
sevens” and there was continued confusion about the plan.
Sue Higginson, principal solicitor and the NSW Environmental
Defenders Office, said the action “would probably be limited to farmers
protecting their direct business interests, but not the interests of an
endangered species or the Great Barrier Reef”.
She said the change would place a huge burden on the courts, would
create uncertainty about who could take action, and would contradict the
whole point of the federal laws to protect the public interest in
nationally significant environmental issues.
Guardian Australia revealed former Howard government attorney general Philip Ruddock also raised concerns about the plan in Tuesday’s joint party meeting.
Ruddock told the meeting any attempt at vexatious litigation could be
stopped by forcing groups to promise to pay costs if it was determined
that their case was wasting the court’s time. He said that if the
problem was an abuse of process then it was best to use the courts to
solve it.
The Abbott government is giving conflicting advice about which part of its own environmental laws
it intends to abolish,
raising fears among farm groups that the attack the government says is
aimed only at “environmental saboteurs” will also hit them.
Government officials have told stakeholders and senators they intend
to abolish all of section 487 of the Environmental Protection and
Biodiversity Conservation Act. Legal advice suggests that would mean any
person wanting to challenge a federal environmental approval would have
to prove they had been directly and personally adversely affected.
This
would strike out many environmental challenges and also stymie several
planned challenges by farm organisations to federal approval of the
controversial $1.2bn
Shenhua Watermark coalmine – prompting deep concerns in farm groups.
But confidential speaking notes, circulated to government MPs on
Wednesday to help them answer media questions, said the government
intended to repeal only section 487(2) of the act “so that activists
cannot use this to sabotage decisions.”
The attorney general, George Brandis, told the Senate on Wednesday
the government would only abolish 487(2). There are three parts to
section 487 and (2) is the part allowing individuals to take court
action. Repealing only that section would stop individual farmers taking
action, but leave the sections that allow both environment and farming
peak bodies to continue to take action as they do now.
In the early 1990’s Australia was among the reasonably ambitious countries when it came to fighting climate change. Yes, Australia was slow to ratify the Kyoto Protocol – to put it diplomatically. However, in 2007, the then new Australian government announced it would ratify, much to the applause of the international community.
Up to the 2009 climate conference in Copenhagen Australia then engaged in a much stronger fashion in the international climate talks. Yet these last few years I have again witnessed strong elements of explicit climate scepticism in the fierce and polarised domestic Australian debate. Luckily, these days seem to be over. The impacts of climate change are already taking their toll, including in Australia.
The Australian government has now sent to the UN its bid as to what Australia’s contribution to the joint global effort of addressing climate change will be. The level of ambition has not gone down very well with the international community. Only if all developed countries do their fair share of the required joint effort, can we expect developing and emerging countries to also take action.
But the good news is that finally there now seems to be an unequivocal acceptance in Australian politics, from the top down, that climate change is happening and that it must be addressed urgently.
Now here is the puzzling question: why on earth wait until 2017/2018 to be more specific on how Australia should address climate change? It has been six years since the climate conference in Copenhagen. It has also been four years since the world, including Australia, agreed in Durban to set Paris 2015 as the deadline for all countries to explain how they would move forward.
What has Australia been doing in all these years? What are you waiting for? And what is the rationale for postponing further the reforms and actions so badly needed to cut emissions substantially?
Nobody believes delaying action diminishes the challenge. Not many believe it is a durable, economic and responsible strategy to continue to bet that the future belongs to coal. China is rapidly ceasing to be an importer of seaborne thermal coal and India’s energy minister says he is confident India will stop importing coal in the “next year or two”. American coal companies have lost more than 80% of their value over the last few years.
Europe is already reducing its emissions substantially and the 28 governments of the European Union have decided on target that bind us to do much more and reduce our domestic emissions by at least 40% in 2030 compared to 1990. We are using a range of tools: binding targets, a price on carbon, renewables, energy efficiency targets etc. In my country Denmark, we have created new industrial strongholds and jobs by exporting green technologies and solutions to a world that demands exactly this, only more and more.
Is it easy to go low carbon? No. Change is difficult. Does it come without costs? Of course not. There is no cost-free way to transition to a low carbon economy. Some prefer to ask polluters to pay which usually means consumers buying emissions intensive goods would experience a rise in price. Others would rather ask taxpayers to financially help polluters reduce emissions. Others again prefer to give economic incentives. Or to set up tough standards.
There are many ways to do this. Each country must find its own home-grown mix of solutions. But the choice is easier to make when all understand that continuing business as usual also comes with a price.
In Europe, governments believe that it is better – also economically speaking – to invest in a more sustainable and low carbon future than it is to wait for the costs and consequences of climate change to mount. It seems this recognition is now prevailing also in the world’s biggest emitters like e.g. the US and China.
In short: the world is changing track. Hopefully Australia is too.