We quibble over ‘lawfare’, but the law is not protecting species properly anyway

The federal government is set to go ahead with its crackdown on environmental “lawfare”, which would restrict green groups’ legal standing to challenge mining approvals and other developments.

The Senate Standing Committee on Environment and Communications yesterday endorsed the proposed changes to the Environment Protection and Biodiversity Conservation Act, citing the “costs to proponents and consequences for economic activity when major development projects are delayed by judicial review”.

The move was first announced in August, in the wake of a successful Federal Court challenge to the approval of the planned Adani mine in Queensland (since reapproved).

At the time, Attorney General George Brandis described such litigation as “vigilante” action by “radical green activists”, while agriculture minister Barnaby Joyce added in an ABC radio interview that the only people who should have standing to challenge mine proposals are those nearby who might be affected by dust, noise or water contamination.

But by seeking to limit who has the right to appeal its decisions, the government misunderstands the purpose of environmental legislation.

The amendments not only go against the progressive development of environmental law worldwide, which has helped to make approvals more open to public scrutiny, but they are also a grave injustice to nature itself.

Appealing prospects

Under the proposed amendment, a person or group will not be able to appeal a decision unless they can show that they will be “aggrieved” by the development, which typically implies suffering some direct and material adverse impact.

But, as Joyce also acknowledged, this is not a simple matter of physical proximity. Groundwater pollution, for instance, can affect people living many kilometres downstream. Determining who is or isn’t aggrieved could represent an entire new source of green tape.

Moreover, silencing legitimate public concerns in this way does not guarantee that a government’s preferred projects will be protected from legal challenge – a lesson the Tasmanian government learned when green groups collaborated with financial investors to defeat the Gunns pulp mill, in spite of the ignominious Pulp Mill Assessment Act.

But there is something more fundamental at stake here.

Against the tide

The question of whom or what should be protected by environmental law was raised by the US scholar Christopher Stone in his 1972 polemic Should Trees Have Standing? He argued that only by granting legal rights to nature would we change the culture that sees nature as an expedient resource at our disposal.

This would help to resolve a false dichotomy raised by the US environmentalist Aldo Leopold in a 1949 essay that helped to kickstart the environmental movement, in which he wrote that “we abuse nature because we treat it as a commodity which belongs to us rather than a community to which we belong”.

Clearly, nature is both community and commodity.

In 1999 the Australian government came close to recognising this when it passed the Environment Protection and Biodiversity Conservation Act. Yet this protection is constrained in various ways, such as by being limited to designated threatened species (about 1% of Australia’s named plants and animals), areas of national environmental significance (such as world heritage properties), or certain areas under Commonwealth management.

So while anyone who can show they are likely to be affected by a decision has standing, usually only plants and animals that are threatened with extinction can qualify for legal protection. To use a medical analogy, they can only bulk bill if they’re terminally ill.

Prevention vs cure

Should we really only consider protecting nature when it’s on the way out? The fact that only 9% of species listed as threatened have ever recovered sufficiently to come off the list (and many have promptly gone back onto it) suggests that the Act is not working, even for the species it covers. It is not working because it is often not triggered until it’s too late, and the list of threatened species just keeps growing.

People on all sides of politics are currently arguing about who is being excluded from the EPBC Act. Meanwhile the law is failing to protect the plants and animals that are supposed to be included.

An alternative vision that evokes Christopher Stone’s ideal is beginning to find legal expression in some countries, such as New Zealand, where a long dispute between the government and Maori over management of a major river concluded in 2012 with an historic agreement that the Whanganui River is a legal person, with its own rights. Two guardians, one appointed by the local Maori iwi and the other by the government, will protect the river’s interests forever.

The challenge for science and the law is to develop criteria for protection based not on how rare something is, but on how significant it is to both nature and people – as both natural community and natural commodity. We should then empower environmental groups or other entities to act as guardians of that protected interest – and to defend it in any court.