For nearly 30 years Michael and Margaret (not their real names) have lived on their block outside a small north Queensland sugar town. During the sugar harvesting season they put up with a lot of truck traffic, and, being on an unsealed road, a lot of dust.
“It’s so thick sometimes I reckon you could see it from space,” Michael said.
He and Margaret are in their 70s, with health problems worsened by the dust. In June 2013 Michael rang the sugar mill to ask if something could be done. He was told to call the transport contractor. After a few calls he felt he was being given the runaround. Next call was to the local council, where the issue was described as just one of those things that come from living on an unsealed road.
Michael and Margaret seriously considered moving out for a couple of months, until Margaret came across the Environmental Defender’s Office (EDO), a specialist community legal centre. Michael called and spoke to a solicitor.
“He listened to what I had to say and asked if I wanted him to call the council, which I did,” Michael said.
Soon after, they got a call back. The EDO solicitor had been told there was nothing that could be done.
“But the solicitor said that wasn’t right, and asked if I wanted him to write a letter. Of course I did,” Michael said, “and then the trucks started going a different direction, a little bit further for them and a bit more fuel they didn’t want to use.”
Michael said he’s very thankful for the EDO’s help, but it’s got to be pretty bad for him to complain about something: “And they didn’t charge.”
The EDO is essential to help fight the big end of town.
A couple of months before Michael and Margaret’s mini-drama unfolded in north Queensland, another drama of an entirely different scale came to a high point in the NSW Land and Environment Court. Here, the Bulga Milbrodale Progress Association (BMPA) had appealed against a February 2012 decision of the NSW Planning Assessment Commission to approve the expansion of the Warkworth coal mine. The mine, six kilometres outside the small village of Bulga in the Hunter Valley, is owned by Rio Tinto. The expansion would bring the mine much closer to the village, with some fearing it would be the end of Bulga.
John Krey, President of BMPA, said they first contacted EDO NSW for legal advice and help with submissions in 2009.
“We are not a green group, we are a progress association,” Mr Krey said, “we needed help.”
Following the February 2012 approval, the EDO decided to support the BMPA in an appeal and commenced proceedings. Fourteen days of hearings were held over late 2012 and early 2013 before, in April 2013, the appeal was upheld. The significant and unacceptable impacts on the environment, noise and social impacts were found to outweigh the substantial economic impacts and the mine expansion was prevented. A week later Rio Tinto and the state Planning Minister, Brad Hazzard, lodged an appeal in the NSW Court of Appeal. Three days of hearings were held in August 2013 and a decision is expected in early 2014.
Both sides of the EDO
Many people will be aware of the legal battle between Bulga and Rio Tinto, and other high profile legal cases the EDO has supported around Australia, such as mining in Tasmania’s Tarkine, the gas hub at James Price Point near Broome, and the Nathan Dam in south-east Queensland. In Victoria, the EDO supported action against the state government for breaking its environmental laws in the Gippsland forests. Such cases attract significant media coverage.
Very few people, though, will be aware of the support the EDO has provided to people like Michael and Margaret, where a couple of phone calls and a letter achieved a good outcome. This quiet, behind-the-scenes work, much of it for people troubled by local planning issues, is 99 per cent of its work, according to the EDO.
But significant angst has been directed towards the EDO, particularly from the mining industry.
It’s easy to understand a mining companys’ discontent at the NSW Land and Environment Court decision preventing the expansion of the Warkworth mine. Lots of jobs and lots of money were at stake, and Rio Tinto lobbied the government.
Shortly before the appeal hearing, changes to the assessment process for new and expanding mines were announced: economic significance was to be the overriding consideration, with adverse social and environmental impacts of lesser concern. The government has resisted requests for the public release of information about Rio Tinto’s lobbying.
If Rio Tinto and the state lose the appeal, the miner can resubmit its application to be assessed under the new process, almost guaranteeing approval.
John Krey and others allege substantial corruption in the entire assessment process and have referred it to the Independent Commission Against Corruption.
“It’s hard,” Mr Krey said, “when you win the legal case they go to plan B, change the law.”
Across the country, feelings of powerlessness and frustration, simmering anger and outright rage, are common responses to what is seen as government favouring big miners and business over individuals, communities, and the environment.
The EDO story
The first EDO was established in NSW in 1985 and a national network of nine offices was in place by 1996. Any member of the public can get free initial legal advice. EDO NSW executive director Jeff Smith said: “For a lot of people this is giving them advice they don’t necessarily want to hear, but absolutely need to hear.”
EDOs also offer a community education program with a range of guides to understanding the law. They play an active role in law reform and policy development, spending a significant amount of time preparing submissions to government policies and proposals. In some cases they provide legal representation. Guidelines state that for a matter to be litigated the case must have reasonable prospects of success and involve a public interest environmental issue.
In legal circles, ‘the public interest’ is commonly described as poorly understood and poorly defined. It’s also commonly said, ‘you always know it when you see it’.
EDO funding varies considerably between the states. An annual federal grant has been provided for 20 years. In 2012-13 this was $97,000 for all but the Canberra office, which received half for a part-time office. Some state governments provide an annual grant. There are also project specific grants and donations.
In mid-2013 the then Commonwealth Attorney-General, Labor’s Mark Dreyfus, unexpectedly announced a major increase in funding. For most this was around an additional $300,000 each year. Dreyfus had earlier highlighted that when community groups are free to advocate for systemic change, it’s “a mark of our maturity as a democracy.”
The increased funding allowed the Darwin EDO office to hire a second solicitor and an administrator, which freed the original solicitor to concentrate on legal work. Western Australia was able to plan for a Broome EDO office to assist with the workload coming from the Kimberley.
EDOs come under fire
Not everyone celebrated the spread of the EDO as a result of its increased funding.
The NSW Minerals Council produced a statement that said the federal government must ensure this funding did not support “extreme anti-mining activists who are intent on economic sabotage and continuously break the law in pursuit of their political agendas”. It also noted the “direct association of the EDO with the ‘Australian anti-coal movement’.”
This “direct association” stems from EDO participation at a 2011 meeting of a collection of community and conservation groups in Katoomba, which produced a document called Stopping the Australian Coal Export Boom.
The Australian Coal Association (since merged with the Minerals Council of Australia) had written to NSW Premier Barry O’Farrell in March 2012, expressing concern at EDO association with the anti-coal movement, also noting several legal cases the EDO was supporting against coal mining.
The NSW Minerals Council wrote to Mr O’Farrell in early October 2012, expressing similar concerns and questioning the logic behind NSW taxpayers’ funds being provided to the EDO to “lodge legal challenges against decisions taken on behalf of taxpayers by the NSW Government”. Both groups asked the Premier to cut EDO funding.
The EDO responded that on request from clients it had attended the October 2011 meeting of community groups campaigning against coal. “EDO NSW did not make any presentations at the meeting,” a recent statement said. It “provided professional legal advice to its clients, as is normal legal practice and common to legal service providers. But EDO does not sign onto campaigning letters.”
Acknowledgement of having provided assistance in the preparation of the Stopping the Australian Coal Export Boom document does not, the EDO statement outlined, mean endorsement of that document.
In late October 2012, the EDO was again criticised for its attendance at Groundswell, a conference focused on coal and coal seam gas, in Gloucester, northwest of Sydney. Then NSW Energy Minister Chris Hartcher claimed the conference was “about the Left agenda trying to destroy the economy,” and accused the EDO of “consorting with radical socialists”.
EDO NSW executive director Jeff Smith described these claims as “arrant nonsense,” adding that by definition EDO work is “in the public interest and that means we engage with many groups in the community.”
About 150 people from NSW and Queensland participated in the two-day conference. Fiona Simpson, president of the NSW Farmer’s Association, was among them. In a recent statement she noted:
“The NSW EDO undertakes important legal communication work on rural law issues. It has produced landholder guides which are a valued reference for many of our members. In particular the EDO’s work on mining and coal seam gas issues have been useful in helping with the understanding of landholder rights.”
John Rosenbaum, Mayor of Gloucester and a Councillor since 2004, was also at the conference. “My recollection is the EDO was invited to give information about what they do and how people can use their services,” he said. “It was more a general presentation about EDO than about coal or CSG”.
Mr Rosenbaum said rural people find the EDO invaluable. “Rural people don’t have anywhere else to go for independent advice, and most farmers are cash-strapped. The EDO is the first and only port of call for those struggling with the issues.”
Formerly a farmer, Mr Rosenbaum has lived around Gloucester for 40 years. He sold the farm in 2011.
“We were being surrounded by resource industries, the neighbours were going. It changes everything. You lose your sense of place, your connection,” he said.
Australian academic Glenn Albrecht coined the phrase ‘solastalgia‘ to describe the pain people experience on realising the place where they live, and love, is under immediate threat.
The slippery slope
In December 2012, when announcing changes to guidelines for legal aid funding, NSW Attorney-General Greg Smith said this was “to stop the funding being used on behalf of ‘activists’ and ‘lobbyists’ who could impede the state’s minerals industries”.
In response to this, and the associated news that its funding was to be slashed, Jeff Smith noted most EDO work was for rural community groups and the changes were likely to affect many of these.
Similar attitudes towards the EDO were apparent in Queensland. In July 2012, the Queensland Attorney-General, Jarrod Bleijie, announced the state government was cutting funding to the EDO in both Brisbane and Cairns. “A front for The Greens Party in Queensland,” he said of the EDO.
In October 2013, the NSW Minerals Council was reported to have lobbied Federal Attorney-General, Senator George Brandis, to cut funding to the EDO.
On December 17, 2013, Mr Brandis announced the additional funding provided under the previous Labor Government was cancelled, effective immediately, and the long-standing annual grant would not be renewed at the end of June 2014. Mr Brandis said the government had to “make savings across all portfolios in a ‘fiscally constrained environment’,” and had “prioritised the funding of legal services to frontline services”. This would support disadvantaged members of the community, “rather than using public money on advocacy and lobbying activities.”
Around the country, EDOs responded with shock. All claim they are efficient with ‘no fat to cut’. While some cuts, or restrictions on the use of government funding, were expected, few anticipated a total cut. The Brisbane, Sydney and Melbourne offices are likely to continue at a reduced level, most of the other offices face enormous challenges to stay open beyond June 2014.
Jess Feehely, principal lawyer of EDO Tasmania for the past 10 years, said she was initially “deflated at the future prospects. But I’ve been buoyed by the extent, and diversity, of community support”.
That’s a common feeling around the EDO network, along with the frustration that they need to be putting their energies into survival and fundraising rather than providing services.
“Shocked and outraged,” was Jo Bragg’s response to the cuts. EDO Queensland’s principal solicitor, who’s been with EDO since 1992, said: “The Attorney-General hadn’t put any effort into understanding the range of services the EDO provides, he’s only listened to the miners, the pro-development lobby.”
Fergus Power from EDO Northern Queensland noted: “A cynic might say that the federal government completely defunding the one independent environmental legal service in the country goes hand in hand with its support for major mineral developments in Queensland, and elsewhere”. Power says the EDO Cairns office is the largest trainer of environmental lawyers in Australia, and their closure would have an enormous impact on a specialised area of law, “but the same cynic might think the federal government places a low value on environmental law.”
“We are lawyers, first and foremost,” Melissa Ballantyne from EDO South Australia said, “and we help the government and the courts by filtering out complaints. We stop a lot of unachievable actions”.
A spokesperson from EDO NSW said that in 2013 they provided initial free advice to over 1,200 community members, more than 190 detailed, written pieces of legal advice to individuals and community groups, and assisted 19 of these in court action.
Having legal rights is not the same as being able to use them. Many EDO clients around the country have noted the EDO acts as a counterbalance to the inequality they experience when facing commercial interests with financial and legal backing.
Justin O’Brien is CEO of the Gundjeihmi Aboriginal Corporation which represents the Mirrar people, traditional owners of parts of western Arnhem Land and Kakadu National Park. This includes the site of the Ranger uranium mine. “In the bid for environmental and cultural justice a well-informed legal basis and a well-articulated legal argument is critical. Being high profile we’ve been lucky enough to get pro bono legal counsel on a number of occasions,” he said, “but none of that trumps the services provided by the EDO.”
Jane MacDonald spent seven years opposing a canal development at Ralphs Bay, south of Hobart. “The EDO gave us level headed, sensible, sane advice. They helped us participate in an important democratic process and that’s very empowering,” she said. “The developer released a 7000-page statement and the community had four weeks to comment”. With EDO help they were able to overcome that. “We won graciously,” MacDonald added.
Michael Spinks is a member of the Lowbidgee League, a group of farmers from around Hay in western NSW. Some years ago they were concerned their district was being left out of a government water sharing plan. “The EDO gave us good advice,” Spinks said. “They said we had a strong case. But they also said if we win the government would probably just change the rules. We’d still lose. That stopped us taking legal action.”
Dr Anne Poelina is a member of the Nyikina Mungala people and a traditional custodian of the lower Fitzroy River in the Kimberley. She’s also a Councillor on Broome Shire Council. EDO WA is acting for Dr Poelina on objections to a coal mine near the Fitzroy River. “The environmental assessment system in Western Australia is compromised, and the EDO helped people understand and participate,” she said.
The compromise Dr Poelina mentions was evident last August when an approval for a major gas hub development at James Price Point in the Kimberley was overturned in the WA Supreme Court due to a conflict of interest in the assessment process. EDO WA ran the successful case for The Wilderness Society, whose Peter Robertson said: “After we established the law had been broken, the EDO ran the case. We couldn’t have done it without them.”
Along with these, and other high profile cases, there are the behind-the-scenes cases where people come to understand the law. This supports rational decision making, civility and puts people in a better position to participate, and perhaps compromise, over local planning and development issues.
EDOs around Australia report client surveys indicate a high level of satisfaction with their service, and EDO NSW points to an overwhelmingly positive 2011 independent evaluation.
Sydney barrister Neil Williams acted for Rio Tinto in its case for expansion of the Warkworth coal mine at Bulga. In a paper for an Environment and Planning Law conference in 2010, he wrote that the EDO “plays an extraordinary role in ensuring that meritorious cases are brought before the Court by skilled practitioners.”
Through all of this, three broad arguments favourable to the EDO are clear.
EDOs claim they address a fundamental inequality in the legal system, by providing advice, and in some cases, legal representation to individuals and groups against government and commercial interests.
EDOs say they contribute to a more efficient legal system by keeping matters with no prospects of success out of the legal system. Less than one per cent of matters referred to EDO go to court.
EDOs believe if a government Minister’s decision is unlawful, and provided it’s in the public interest with reasonable prospects of success, it’s right that it be challenged.
The NSW Mineral’s Council, Minerals Council of Australia and the free market think tank, The Institute of Public Affairs, who have previously been critical of government support for the EDO, have all been invited to respond to these specific issues. All have declined, relying on general statements.
A spokesman for federal Attorney-General George Brandis also declined to comment on these issues, but pointed out that as part of budget savings funding had been reduced to a number of legal assistance programs. Asked to explain the rationale for completely cutting the EDOs funding, he was unable to comment.
Mark Parnell is the Parliamentary Leader of the South Australian Greens. Before entering Parliament he spent 10 years as a solicitor with EDO SA, where he also served as a board member. From that subjective position Parnell recalled a threat to EDO funding shortly after the Howard Government was elected in 1996. “Word went around,” Parnell said recently, “about pressure from government backbenchers who were asking ‘why do we fund these bastards who challenge our decisions?’” The EDO was able to mount a defence of itself and retained its funding, although restrictions were placed on their work. “We became a community legal centre who couldn’t do legal work,” Parnell said.
Fighting the big end of town
If EDOs close, or drastically cut services, people like Michael and Margaret in north Queensland will struggle when they need help.
John Krey from Bulga said: “the EDO is essential to help fight the big end of town”. He and others like him around Australia would have no support in the enormous struggles they face. The despair will be palpable.
There’s something deeply unsatisfying about untested claims – ‘he said – she said’ – but the absence of dialogue, the unwillingness to engage with issues, from the Federal Attorney-General and the mining industry groups, lends support to the proposition that conservative governments just don’t like to fund bastards who challenge their decisions. ‘Bastards’ like the Environmental Defender’s Office.