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Environmental Defenders Offices are under serious threat

Speeches in Parliament
Penny Wright 15 May 2015

Senator WRIGHT (South Australia) (21:58):  Tonight I am rising the speak about EDOs-environmental defenders offices. I want to talk about the exceptionally important role they play throughout Australia, which is essentially legal aid for the environment and people who want to stand up for the environment. And I need to talk about the fact that they are seriously under threat, with some-particularly in South Australia, the Northern Territory and the ACT-at risk of not surviving at all.

The situation is urgent and it will be a terrible shame, at a time when we have never faced more serious challenges to the environment which sustains life on this planet, if we allow this to happen. Many people will not know about the important and significant work these nine offices around Australia do, but their many clients-those people who have sought their advice and help on environmental law issues over more than two decades, now-will have no doubt about what the loss of environmental defenders offices would mean.

Since they were established in the 1990s, EDOs have played a crucial role in helping communities to protect their land, air and water. The have provided legal advice and representation, they have worked for environmental law reform and they have had substantial input into policy debates and discussions around Australia with the aim of promoting optimal environmental policy.

They have even earned a national and international reputation for professional legal work of the very highest order in quality and integrity.

Bu what does this actually mean on the ground? Central to what EDOs do is empowering people with the knowledge they need to protect the places they love. So EDO lawyers advise individuals and community groups on their specific situation and help them to understand the laws and the processes involved in using the law to defend their environment. This is what happened when seven residents of Coffin Bay, a small town on the Eyre Peninsula of South Australia, approached the EDO to challenge the development of an 'international health clinic' and a 36-lot residential subdivision on pristine coastal bushland on the outskirts of the popular tourist town. Issues that worried those residents included the irreversible destruction of important habitat, which had sites of rare plants; the overuse of precarious groundwater resources; increased risk of bushfires; and inappropriate urban development. With the help of the EDO in South Australia they won their case in the Environment Court-and the only thing motivating these everyday Australians in embarking on a stressful and costly process to challenge the planning approval was their love of the unique environment of the town and their desire to see proper processes followed.

Reading the annual staff report of the South Australian EDO for the last year gives a sense of the broad and valuable scope of work they do-with just two lawyers and dozens of volunteers. The volunteers combined-made up senior lawyers, students, graduates and other interested members of the public-contribute almost the equivalent of the paid time of the EDO staff. Over 2013-14 the EDO helped a wide range of individuals-including small business owners, farmers and residents-as well as groups, special interest groups and environment groups. They were from various backgrounds and from all regions of South Australia. Many of the cases were planning issues under the state's Development Act, but there were also serious pollution issues under the Environment Protection Act and concerns around local government, native vegetation and water resources.

Here is a taste of just some of the particular issues raised with the South Australian EDO in the course of a year-and this would be a sample of the kinds of issues that EDOs around Australia tackle in any given year: water resources on the Eyre Peninsula, which is a significant but arid farming region in South Australia; damaged wetlands in the south-east of South Australia, which is a cropping and winegrowing region; noise pollution from trucks; regulation of the Port Pirie lead smelter, which has been associated with high levels of lead pollution affecting the health of local people and, in particular, young children; waste treatment; abattoir effluent affecting the viability of a small business in a rural area; water licences for mining; oil and gas exploration by BP in the Great Australian Bight; clearance of coastal native vegetation; mining waste; decommissioning of a defective drilling well; groundwater contamination; and regulation of unconventional gas extraction.

So why is it that organisations that do so much good work are at risk? EDOs have received Commonwealth funding for 17 years. But a week before Christmas in 2013-shortly after they were elected-the coalition government cut $10 million in funding to EDOs in the Mid-Year Economic and Fiscal Outlook and announced it was planning to end any further annual payments As a result, the Commonwealth funding of EDOs-about $100,000 each per year-ceased in July 2014. It was no coincidence that this Commonwealth government announcement followed cuts of state funding to the Queensland EDO by conservative Premier Campbell Newman in 2012 and cuts to the New South Wales EDO by the then New South Wales Premier, Barry O'Farrell, in 2013. The common link was intensive lobbying, especially of conservative governments, by the minerals and coal industries, who are incensed to think that legal services which have been funded by governments are effective in helping their clients to challenge government or private actions which threaten the environment we all share-especially if they are so effective that it gets in the way of what other powerful interests want to do.

FOl documents show that, before Barry O'Farrell made his decision, the New South Wales Minerals Council chief executive had written to him hoping the government would cease funding the EDO as 'a matter of urgency'. The Coal Association made similar appeals in March 2012, writing that it was 'perverse' that EDO funds were being used to challenge the decisions of elected representatives-and yet the courts were upholding those challenges, which shows that those decisions of elected representatives were not lawful.

At the February 2014 Senate estimates hearings, I questioned the Attorney-General, Senator Brandis, about whether he had been lobbied by anyone to make his cuts to EDO funding several months earlier. At first he had no recollection, but then he was helpfully reminded by his adviser that he had received a letter from the same Minerals Council of New South Wales. Although the Attorney-General would not disclose the contents of that letter, a subsequent freedom of information query revealed that the letter was, again, from the Chief Executive of the New South Wales Minerals Council, Stephen Galilee, who urged Senator Brandis not to fund the New South Wales EDO.

It is no secret that, in the eyes of some, EDOs around Australia have been too successful in protecting the environment. In New South Wales they have helped clients prevent a coalmine expansion by Rio Tinto, they have helped clients force Santos to hand over water data to concerned farmers and they have helped stop bulldozers clearing Maules Creek. In the Northern Territory the EDO has supported traditional owners in remote Borroloola in relation to the McArthur River Mine, which has the potential to cause catastrophic pollution of their land. It was the first agency to raise concerns with the Northern Territory health department about a smoking waste rock pile, triggering an investigation.

It is not clear whether, if that alarm had not been raised with the help of the EDO, that investigation would have occurred.

It is important to remember that the kinds of attacks and restrictions on independent, public interest legal services like EDOs that we have been seeing recently are not new. In 1997, soon after he gained office, John Howard's federal government imposed a condition on environmental defenders offices that they were not to use legal aid funds for litigation. John Howard's government never gave an adequate rationale for their rule but the timing was very interesting. The year before, a wealthy developer called Keith Williams, who was intent on developing the controversial Port Hinchinbrook resort in northern Queensland, had been publicly and prominently critical of government funding for environmental defenders offices following the effective work by EDO New South Wales in advising and representing a group called the Friends of Hinchinbrook, who challenged his development in the Federal Court. Forbidding a legal service, whose job is to assist its clients to use the law, from using litigation is like ordering them to operate with one arm tied behind their back. If it was not so cynical, it would be laughable.

Last year the Productivity Commission finalised a substantial inquiry into access to justice arrangements in Australia. It specifically considered environmental defenders offices and noted that in the past five years there were no cases in which EDOs were engaged which were dismissed on the basis that the case was frivolous or vexatious. The Productivity Commission stated:

The Commission considers that there are strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation including in relation to environmental matters.

Recently the federal government bowed to pressure and reversed some of the funding cuts they had applied to other community legal centres and legal aid in Australia. But they have steadfastly refused to reinstate funding to environmental defenders offices. This antipathy to EDOs is only understandable if we take into account the powerful interests who are opposed to them.     EDOs play a crucial role in a nation that respects the rule of law and the right of its citizens to challenge the government where laws or administration are deficient. Over many years EDOs have a track record of making sure government action is lawful and that the voice of ordinary Australians can be heard when it comes to our shared environment.

In 1999 the South Australian Environmental Defenders Office initiated what became the longest environmental court case in South Australian history. The issue was whether the state's burgeoning aquaculture industry was being properly managed and in particular whether it was 'ecologically sustainable', as required by South Australian law. Forty-two floating feedlots for southern bluefin tuna had been established off the coast at Port Lincoln without a thorough environmental impact assessment. The EDO assisted the SA Conservation Council, which incidentally has now also been defunded by this federal government, to lodge an appeal in the Environment, Resources and Development Court. After a lengthy trial and dozens of witnesses, the full bench of the court found that the feedlots had been approved in contravention of the planning scheme and were not, as was required for development in coastal waters, 'ecologically sustainable'. The court overturned the approvals and the case attracted international interest because it was one of the first times that a court had determined the meaning of the term 'precautionary principle'.

Eventually, because of this EDO case, the South Australian state government realised that the regulatory arrangements for aquaculture were a shambles and was forced to rewrite the aquaculture laws and modernise its practices and processes to reflect modern environmental standards. That was in 1999. Since that time the EDO has changed the landscape in South Australia in many ways. It has been a relentless champion for the public disclosure of pollution and licensing documents held by the Environment Protection Authority. For years they were extremely difficult to access, requiring the payment of an exorbitant fee and a visit to the city. Now the EPA routinely publishes vast amounts of information in an easily accessible online public register, in large part because of the persistent advocacy of the EDO over many years.

At a time when we are facing bigger environmental challenges than we have ever faced before and at a time when we are in a generation which will make decisions that mean that our species and many other species will survive and thrive or not, we have never needed stronger defenders of the environment. Our increasing human population will mean ever-increasing pressure on our environment and our resources. The pressure to develop at any cost will only increase. As senior lecturer at Adelaide University Law School, Peter Burdon, has written:

We are living at a time when the best science in the world is telling us that human beings are on a collision course with ecological collapse. Moreover, the time frame for this collapse is getting shorter and shorter.'

Without public support the environmental defenders offices in South Australia, the Northern Territory and the ACT particularly will not survive. Without them individuals and grassroots community groups, who are often fighting David and Goliath battles with wealthy mining companies and wealthy developers, will be left to fight alone. Every EDO has a website, every EDO has a donate button. I urge everyone who cares about protecting our environment and who has the means to support these important services to visit those websites and to click on those donate buttons. The EDO defends the environment in a way that no other organisation can as the environment's legal team, and I take this opportunity to thank those lawyers, those volunteers, who have worked tirelessly for so long and continue to work against the odds to protection the environment on behalf of all of us. We all benefit from your work.


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