Farm organisations horrified they will be swept up in changes to environmental laws that aim to stop green groups taking legal action against resource projects
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 ‚Ä¶ 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.