Government v citizen: who is the vigilante?

In an action brought by Mackay Conservation Group, the Federal Court of Australia recently ruled that the Australian Government had failed to follow the law in granting approval to the Carmichael Mine. The Australian Government conceded this. The application will now need to be reconsidered by the relevant Minister in accordance with the relevant legislation.

Following this decision, the mining industry called on the Government to 'close the loophole'. The Prime Minister, Tony Abbott, criticised the Court for standing in the way of development and economic growth. The Attorney-General, George Brandis, called the action 'vigilante law'. Supported by the Industry Minister, Ian MacFarlane, the Attorney-General is planning to bring forward amendments to the law that prohibit environmental groups from appealing environmental decisions. The Industry Minister has said 'We're just saying if people live 600 kilometres away from a coalmine or from a development proposal, what right do they have to prevent that proposal providing an economic boost to the region?'

This post analyses this issue, arguing that it is the collective approach of the Prime Minister, the Attorney-General, and the Industry Minister that is 'vigilante' action. In particular, I argue that the concept of legality within our legal system is intrinsically linked with citizens' rights to challenge executive power. Importantly, the concept of 'standing' to challenge environmental decisions has an ancient connection with environmental sustainability.

Landholders' right to refuse: Protecting property

Landowners may get the right to refuse entry to miners

Senator Larissa Waters has introduced a private members bill into the Senate to deal with the stand off between landowners and miners, and to stop fracking. The Landowners Right to Refuse (Gas and Coal) Bill 2015 ('Bill') seeks to achieve two aims (section 3):

• To stop hydraulic fracturing (‘fracking’) by constitutional corporations; and
• To require informed landholder consent to entry onto land for the purpose of gas and coal exploitation.

The legal issues underlying the Bill’s aims are twofold. First is the Commonwealth power to legislate for land use and mineral exploitation, both of which are a state concern. I won't be dealing with this issue here, assuming the Commonwealth's corporations power enlivens its jurisdiction.

Of interest to me is the second question, of framing rights between two interest-holders in the same land: the miner and the landholder. Miners’ rights are directly derived from the State and are an expression of the bounds of the State’s original grant of land. Therefore this second question potentially involves redistribution of the boundaries of ownership between the State and the landholder. I have made a submission to the Senate Environment and Communications Committee that focuses on the latter issue of distribution of property rights between miners and landholders, and the purpose of the Bill in terms of property. I use Queensland law to illustrate my argument.

Has the Queensland election offered a reprieve for the environment?

I wrote late last year of changes to Queensland's Water Act. The Water Reform and Other Legislation Amendment Act was passed on 26 November 2014, and proclaimed on 5 December. The changes included a shift in the Act's purpose from one of sustainable management of water, to one of efficiency and productivity in water management. This underlines the tenor of the substantive provisions which include 'reducing assessment and regulation of water taken by mining projects.' Both environmentalists and farmers have criticised the amendments, in recognition of the risk for local and regional environment and farming. The amendments have also been criticised for their likely adverse effects on the Great Barrier Reef.

While the amending bill was passed, not all parts of the Act have come into force. Under the amending act, changes to the Water Act will come into force on a date to be proclaimed. According to the Department of Natural Resources and Mines, the staggered commencement dates for different parts of the amending act are to ensure the 'Department's systems are ready to support these reforms.'

Only a matter of weeks following the commencement of the amending act, the Newman government called an election and lost. In the meantime, the Water Act amendments have not been proclaimed. If nothing further occurs, the Water Act changes will become law on 6 December 2015, through the application of the Acts Interpretation Act.

On the basis that the ALP spoke out against the changes, it is hoped that the relevant provisions will be repealed before they come into force.

Why the Great Barrier Reef should have legal standing

The Reef is under threat and needs our protection

Friday saw the announcement that the Great Barrier Reef Marine Park Authority ('GBRMPA') had approved dumping of dredging spoil within the boundaries of the marine park. This followed the Commonwealth's go-ahead for the construction of the world's biggest coal terminal at Abbot Point, off Bowen, to facilitate mining in Queensland's coal-rich Bowen Basin.

The decisions were made in the context of the Great Barrier Reef Marine Park Act which, under s2A (1) apparently aims to:

provide for the long term protection and conservation of the environment, biodiversity, and heritage values of the Great Barrier Reef Region.

Despite the Minister's assurances that the decisions have been made based on 'the science' and the dumping will be subject to rigorous conditions, the very fact of the decisions by both the Commonwealth government and GBRMPA call into question the real intent of the Act.

The perils of individualism and our dystopian present

As a child, I read constantly and I read anything. Of note however, before I had reached secondary school I had been immersed in numerous novels about the Holocaust, had read Alvin Toffler's Future Shock and had spent a lot of time delving into Alicia Bay Laurel's glorious hand written and illustrated Living on the Earth.

Mine was a childhood vision of a dystopian present and a dangerous future for which I felt the need to prepare by knowing how to survive. This was accompanied by a deep sense of responsibility to be accountable for my own consumption. (A responsibility I admit that I have been only partially successful in fulfilling.)

Surrounded today by news of climate extremes, oil drilling in the Arctic, the real possibility of dredging in the Great Barrier Reef, expanding coal terminals on the reef, mining approvals over biodiverse regions such as the Galilee Basin's Brimblebox Reserve, move on powers over Queensland's bat colonies (and so on) the dangerous future I had envisaged has come to pass. And the dystopian present of the 1970s has taken a turn for the worse.

All of these decisions, in which each of us is complicit, arise out of a fundamental dislocation of our very self from our environment and indeed from society. Our governments however have failed to provide a cohesive narrative around these decisions, thus failing to see the inherent inconsistencies in their own positions.

The Ecology of Land Regulation in Queensland

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

How the Law Constructs the Environment: The Wandoan Coal Case

The Wandoan coal case (Xstrata v Friends of the Earth [2012] QLC 013) handed down last week shows how far our property law and environmental and resource management systems need to evolve to deal effectively with contemporary and future environmental issues.

It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).  It is not the first global environmental issue – acid rain and the pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional environmental issues.  Unfortunately, the evolution of environmental law in Australia, as elsewhere, exists still in a political era of sovereignty and control over a nation’s own territory or in the Australian context, that of a State.  The territory does not represent anything outside the context of law.  This construction of ‘the environment’ limits the law’s ability to deal with incremental and cumulative impacts of activity within a territory, on an otherwise interconnected world.

This territorial approach to the environment is compounded by the compartmentalisation of land into differential resources each with their own regulatory regime – for example, minerals, water and vegetation.  (I have written on this before.)  This further reduces the way we think about environmental impact of human activity into a variety of policy approaches, regulatory and licensing frameworks and ultimately different procedural jurisdictions.  Therefore while the environmental impact of one project may have various effects on the environment, the law may treat each aspect of the activity under a different regime.  This is an unrealistic way to understand and deal with the environment.

The law’s construction of ‘the environment’ in terms of a series of independent resources within a boundary determined by law is illustrated by the decision in the Wandoan coal case.

Bats, Dangerous Creatures & Domain Over Land

Bob Katter has recently called for landowners to have 'control over his (sic) backyard'.

"So if he decides to remove a deadly animal, like this bat up here, or a snake, it's his backyard, not the crown's. 

In Mr Katter's view:

"As a race of people we have moved away from (the idea of) 'this backyard belongs to us'."

What I take his meaning to be is that the state has too much regulatory power over activities undertaken upon freehold land.  That is, he is seeking a more libertarian approach in terms of elevating private property above state intervention.  In other words that a person's home is their castle.