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Our Successes · Access to Justice

Third party rights in the Nature Conservation Act

23 August, 2012

In 1989 an environment group tried to stop a cement company destroying caves in which rare (now threatened) ghost bats roosted.

Caves at Mt Etna near Rockhampton used as over-wintering roosts for pregnant ghost bats were due to be blasted for limestone by Central Queensland Cement Pty Ltd. The Central Queensland Speleological Society sought an injunction from Queensland’s Supreme Court to stop the blasting until the case could be heard in full. The Society argued the destruction was illegal because the company didn’t have a permit under the Fauna Conservation Act 1974 to take (which includes to disturb or damage) the bats. Although the judges agreed there was a prima facie case to be tried, an injunction was refused because the majority found the Society did not have standing before the Court.

The Society had no right to enforce the law because their interest in the matter was deemed “merely intellectual or emotional” rather than pecuniary. After a failed attempt in the High Court to protect the Mt Etna caves, they were destroyed.

But 15 years later, a conservationist was able to stand before a judge in Queensland’s Planning and Environment Court and obtain an injunction to prevent destruction of bats of another species, black flying-foxes, without any question about her right to ask this of the Court. (As in the ghost bat case, this was a request for an interlocutory injunction to apply until a full hearing of the matter.)

This right was due to a recent inclusion in the Nature Conservation Act (starting December 2003) of rights for people or groups with an interest in the environment to enforce the Act. This important reform was achieved through persistent advocacy by EDO Qld and the Queensland Conservation Council.

Using the new third party rights and represented by EDO Qld, Carol Booth was able to get an order from the Court to stop further electrocutions of black flying-foxes on a lychee farm and for the removal of the electric grids (see here for an account of flying-fox case 3). Without those rights, the law would not have been enforced, for the government had failed to stop the illegal electrocutions.

EDO Qld set about reforming the Nature Conservation Act after a previous bat case. In 2000 when Carol Booth sought to stop large-scale electrocutions of spectacled flying-foxes on another lychee farm that were in clear breach of the Nature Conservation Act, the government refused to stop it and Carol could not take action under that Act due to the previous finding about environmentalists’ lack of standing. Instead, she had to use new federal environmental laws that explicitly provided standing although proving the case under the EPBC Act was much more onerous (see here for an account of that case).

EDO’s Jo Bragg and QCC’s Carol Booth used this experience to persuade then Environment Minister Dean Wells that third party standing was necessary to facilitate better enforcement of the Nature Conservation Act.

The reforms incorporated into the Act were based on drafting by EDO Qld. They included open standing provisions, costs rules specifying that parties to court action would usually each bear their own costs and no requirement to give an undertaking on damages when seeking an interim enforcement order.

Debate in Queensland Parliament about third party standing reform – Hansard 26 November 2003

Against the motion:

Marc Rowell (National Party): If [environmental groups] have a barrow to push they will go to extraordinary lengths. In terms of vexatious and frivolous claims being brought before the courts, they will certainly go to every length they possibly can. … The provisions of the bill were developed following over 12 months of consultation with government departments, the Queensland Conservation Council and the Environmental Defenders Office. Is it just a coincidence that Carol Booth was directly involved in a case that the minister talked about, which was taken to court under the Environmental Protection and Biodiversity Conservation Act, and that they used the Environmental Defenders Fund to finance that operation? Lo and behold, one of the only groups that is not a government department is the Environmental Defenders Office. Is that just a coincidence? I do not think so.

Bill Flynn (One Nation): industry stakeholders see in clause 23 an invitation to outsiders, particularly ecoactivists …, to intervene in what are on many occasions legitimate agricultural or horticultural operations that they spuriously suggest are breaches of the law. I do not share the faith of the minister in the integrity of green activists who, if they had their way, would ensure that one would have to build their house around a tree and not take it down to build. They are well versed in filling the courts with matters wasting court time. The fact that many matters are thrown out of court has never stopped people in the past from bringing initial complaints, and the greens do it continuously. … Queensland fruit and vegetable growers in particular are worried that clause 23 stands to be a charter for green vigilantes to obstruct and frustrate their attempts to save their crops from the depredations of wildlife.

For the motion:

Dean Wells (Minister for Environment): We make no apology for the fact that this is a green measure. We make no apology for the fact that the laws of Queensland that are designed to protect the state from pollution—the laws of Queensland that are designed to preserve our wildlife, to preserve our fauna and our flora—are going to have this additional assistance in respect of their enforcement.

Our point of view is that we should maximise the amount of social capital in a community in order to get a more prosperous, thriving and healthier community. By actually involving people in the processes of the law and by empowering people, giving them the opportunity to assist in the implementation of the laws enacted by this parliament, we make a stronger and better society.

They do not lead to an opening of the flood gates. The reason that they do not lead to an opening of the flood gates is multifarious. One strand of that reason is this: people do not bring court actions lightly. Third parties do not enter into litigation lightly. The costs involved are considerable. One does not go in and do it on a whim. Secondly, the courts take a very dim view of intermeddlers, which is the legal term. They do not like people who come in and, for no good reason, start trying to assert their additional rights. Also, people generally behave responsibly. Nobody is going to gratuitously ruin their reputation by seeking to be a third-party intervener in a case that really has no legs and in respect of which they have no place.

EDO Qld has advocated for third party rights since its first publication: Environmental Law Reform in Queensland by Maria Comino was published in 1991. EDO Qld believes open standing should apply to all environmental laws as a safeguard against government failure to enforce the law and continues to advocate for this. We provide support for individuals and groups to use their third party rights under environmental laws (see our Community Litigants Handbook)

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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