Koalas, cassowaries, whales; if the Abbott government changes standing provisions in the EPBC Act it will not just be to the detriment of the yakka skink and ornamental snake.
In fact, Australians will be left helpless to protect our country’s vulnerable and endangered species if the proposed changes to the act pass.
Under the changes, the only people who could challenge the approval of a mine or any other major industrial development with high environmental impacts would be individuals who:
- could prove that they have a special interest (usually a commercial interest);
- have the funds to go to court; and
- have the courage to risk a massive costs order against them which would probably bankrupt them if they lose.
In short, the changes would likely put an end to any legal challenges against federal approvals of major industrial developments with high environmental impacts.
For our fellow Australians on the vulnerable and endangered species list – it is likely only people with a commercial interest in their destruction will have a right to challenge projects which impact their welfare.
Do you only want those with a commercial interest in destroying our animals, like mining companies, to be the only ones who can protect them?
There is a strong need to expand community appeal rights, not to remove them.
There are already major limitations to these rights, including:
- The scope of appeal rights within the EPBC Act 1999 is already restricted to “judicial review” rights, which means whether or not a legal error has been made can be reviewed;
- Communities do not have the right to challenge the merits of a project approval under the environmental impact and assessment provisions of the EPBC Act, only the legal validity of it;
- Standing provisions under s487 of the current EPBC Act already limit legal challenges to individuals or community groups who have been active on environmental issues for at least two years.
These limitations have meant that only around 0.4% of EPBC Act referrals have ever been challenged in court.
If s487 (2) is repealed, then the onus falls back entirely onto individuals who can prove they have a special interest to challenge any decision under the Act. This is unrealistic because it is not only extremely costly to launch proceedings in the Federal Court, but also in the event of a loss, an individual would most likely have substantial legal costs awarded against them. On top of this, can hard-working farmers afford to spend so much time away from their farms?
Removing effective review rights will result in less scrutiny and rigour in the assessment process and will most likely result in poorer environmental outcomes at a time when Australia’s natural environment is under greater threat than ever.
Case study – Koalas of Acland
The Commonwealth Laws are already biased against endangered species. If a species is listed as endangered but listed after a developer has sent in a referral for development, then that particular species is ignored in the assessment process. For the expansion of the Acland mine, rural people came to EDO Qld and said their local koala population would be affected if the project went ahead. I had to tell these concerned citizens that because the referral went to the Commonwealth before the koala was listed they could not gain any ground in the assessment process by having the koala listed. This means the Commonwealth Law is already not doing enough to protect our koalas. Under the proposed changes to the EPBC Act, basically only those with a direct commercial interest could stand up for the koala.
– EDO CEO & Solicitor Jo-Anne Bragg