{"id":16195,"date":"2014-03-27T21:26:33","date_gmt":"2014-03-27T10:26:33","guid":{"rendered":"http:\/\/nofibs.com.au\/?p=16195"},"modified":"2019-04-13T23:58:11","modified_gmt":"2019-04-13T13:58:11","slug":"whose-interest","status":"publish","type":"post","link":"https:\/\/archive.nofibs.com.au\/whose-interest\/","title":{"rendered":"Digging up the drama: @1moretalk reports the demise of the Environmental Defender’s Office"},"content":{"rendered":"
\"Warkworth<\/a>

Warkworth open cut mine.<\/p><\/div>\n

By Graeme Gibson<\/a>\u00a0 @1moretalk<\/a><\/p>\n

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.<\/p>\n

\u201cIt\u2019s so thick sometimes I reckon you could see it from space,\u201d Michael said.<\/p>\n

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.<\/p>\n

Michael and Margaret seriously considered moving out for a couple of months, until Margaret came across the Environmental Defender\u2019s Office (EDO), a specialist community legal centre. Michael called and spoke to a solicitor.<\/p>\n

\u201cHe listened to what I had to say and asked if I wanted him to call the council, which I did,” Michael said.<\/p>\n

Soon after, they got a call back. The EDO solicitor had been told there was nothing that could be done.<\/p>\n

\u201cBut the solicitor said that wasn\u2019t right, and asked if I wanted him to write a letter. Of course I did,\u201d Michael said, \u201cand then the trucks started going a different direction, a little bit further for them and a bit more fuel they didn\u2019t want to use.\u201d<\/p>\n

Michael said he\u2019s very thankful for the EDO\u2019s help, but it\u2019s got to be pretty bad for him to complain about something: \u201cAnd they didn\u2019t charge.”<\/p>\n

The EDO is essential to help fight the big end of town.<\/p><\/blockquote>\n

A couple of months before Michael and Margaret\u2019s 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.<\/p>\n

\"John<\/a>

John Krey.<\/p><\/div>\n

John Krey, President of BMPA, said they first contacted EDO NSW for legal advice and help with submissions in 2009.<\/p>\n

\u201cWe are not a green group, we are a progress association,\u201d Mr Krey said, \u201cwe needed help.\u201d<\/p>\n

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.<\/p>\n

Both sides of the EDO<\/span><\/p>\n

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\u2019s 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.<\/p>\n

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.<\/p>\n

But significant angst has been directed towards the EDO, particularly from the mining industry.<\/p>\n

It\u2019s 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.<\/p>\n

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\u2019s lobbying.<\/p>\n

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.<\/p>\n

John Krey and others allege substantial corruption in the entire assessment process and have referred it to the Independent Commission Against Corruption.<\/p>\n

\u201cIt\u2019s hard,\u201d Mr Krey said, \u201cwhen you win the legal case they go to plan B, change the law.\u201d<\/p>\n

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.<\/p>\n

The EDO story\u00a0<\/span><\/p>\n

\"Unknown\"<\/a>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: \u201cFor a lot of people this is giving them advice they don\u2019t necessarily want to hear, but absolutely need to hear.\u201d<\/p>\n

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.<\/p>\n

In legal circles, ‘the public interest’ is commonly described as poorly understood and poorly defined. It\u2019s also commonly said, ‘you always know it when you see it’.<\/p>\n

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.<\/p>\n

In mid-2013 the then Commonwealth Attorney-General, Labor\u2019s 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.\u201d<\/p>\n

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.<\/p>\n

EDOs come under fire<\/span><\/p>\n

Not everyone celebrated the spread of the EDO as a result of its increased funding.<\/p>\n

The NSW Minerals Council produced a statement that said the federal government must ensure this funding did not support \u201cextreme anti-mining activists who are intent on economic sabotage and continuously break the law in pursuit of their political agendas”. It also noted the \u201cdirect association of the EDO with the \u2018Australian anti-coal movement’.\u201d<\/p>\n

This \u201cdirect association\u201d 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<\/em>.<\/p>\n

The Australian Coal Association (since merged with the Minerals Council of Australia) had written to NSW Premier Barry O\u2019Farrell 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.<\/p>\n

The NSW Minerals Council wrote to Mr O\u2019Farrell in early October 2012, expressing similar concerns and questioning the logic behind NSW taxpayers\u2019 funds being provided to the EDO to \u201clodge legal challenges against decisions taken on behalf of taxpayers by the NSW Government”. Both groups asked the Premier to cut EDO funding.<\/p>\n

The EDO responded that on request from clients it had attended the October 2011 meeting of community groups campaigning against coal. \u201cEDO NSW did not make any presentations at the meeting,\u201d a recent statement said. It \u201cprovided 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.\u201d<\/p>\n

Acknowledgement of having provided assistance in the preparation of the Stopping the Australian Coal Export Boom<\/em> document does not, the EDO statement outlined, mean endorsement of that document.<\/p>\n

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 \u201cabout the Left agenda trying to destroy the economy,\u201d and accused the EDO of \u201cconsorting with radical socialists”.<\/p>\n

EDO NSW executive director Jeff Smith described these claims as \u201carrant nonsense,\u201d adding that by definition EDO work is \u201cin the public interest and that means we engage with many groups in the community.\u201d<\/p>\n

About 150 people from NSW and Queensland participated in the two-day conference. Fiona Simpson, president of the NSW Farmer\u2019s Association, was among them. In a recent statement she noted:<\/p>\n

“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\u2019s work on mining and coal seam gas issues have been useful in helping with the understanding of landholder rights.”<\/p>\n

\"John<\/a>

John Rosenbaum, Mayor of Gloucester, NSW.<\/p><\/div>\n

John Rosenbaum, Mayor of Gloucester and a Councillor since 2004, was also at the conference. \u201cMy recollection is the EDO was invited to give information about what they do and how people can use their services,\u201d he said. \u201cIt was more a general presentation about EDO than about coal or CSG”.<\/p>\n

Mr Rosenbaum said rural people find the EDO invaluable. \u201cRural people don\u2019t 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.\u201d<\/p>\n

Formerly a farmer,\u00a0Mr Rosenbaum has lived around Gloucester for 40 years. He sold the farm in 2011.<\/p>\n

\u201cWe were being surrounded by resource industries, the neighbours were going. It changes everything. You lose your sense of place, your connection,\u201d he said.<\/p>\n

Australian academic Glenn Albrecht coined the phrase ‘solastalgia‘\u00a0<\/i>to describe the pain people experience on realising the place where they live, and love, is under immediate threat.<\/p>\n

The slippery slope<\/span><\/p>\n

In December 2012, when announcing changes to guidelines for legal aid funding, NSW Attorney-General Greg Smith said this was \u201cto stop the funding being used on behalf of \u2018activists\u2019 and \u2018lobbyists\u2019 who could impede the state\u2019s minerals industries”.<\/p>\n

In response to this, and the associated news that its funding was to be\u00a0slashed, Jeff Smith noted most EDO work was for rural community groups and the changes were likely to affect many of these.<\/p>\n

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. \u201cA front for The Greens Party in Queensland,\u201d he said of the EDO.<\/p>\n

In October 2013, the NSW Minerals Council was reported to have lobbied Federal Attorney-General, Senator George Brandis, to cut funding to the EDO.<\/p>\n

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 \u201cmake savings across all portfolios in a \u2018fiscally constrained environment\u2019,\u201d and had \u201cprioritised the funding of legal services to frontline services”. This would support disadvantaged members of the community, \u201crather than using public money on advocacy and lobbying activities.\u201d<\/p>\n

The fallout<\/span><\/p>\n

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.<\/p>\n

Jess Feehely, principal lawyer of EDO Tasmania for the past 10 years, said she was initially \u201cdeflated at the future prospects. But I\u2019ve been buoyed by the extent, and diversity, of community support”.<\/p>\n

That\u2019s 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.<\/p>\n

\u201cShocked and outraged,\u201d was Jo Bragg\u2019s response to the cuts. EDO Queensland\u2019s principal solicitor, who\u2019s been with EDO since 1992, said: \u201cThe Attorney-General hadn\u2019t put any effort into understanding the range of services the EDO provides, he\u2019s only listened to the miners, the pro-development lobby.\u201d<\/p>\n

Fergus Power from EDO Northern Queensland noted: \u201cA 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, \u201cbut the same cynic might think the federal government places a low value on environmental law.\u201d<\/p>\n

\u201cWe are lawyers, first and foremost,\u201d Melissa Ballantyne from EDO South Australia said, \u201cand we help the government and the courts by filtering out complaints. We stop a lot of unachievable actions”.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Justin O\u2019Brien 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. \u201cIn the bid for environmental and cultural justice a well-informed legal basis and a well-articulated legal\u00a0argument is critical. Being high profile we\u2019ve been lucky enough to get pro bono legal counsel on a number of occasions,\u201d he said, \u201cbut none of that trumps the services provided by the EDO.\u201d<\/p>\n

Jane MacDonald spent seven years opposing a canal development at Ralphs Bay, south of Hobart. \u201cThe EDO gave us level headed, sensible, sane advice. They helped us participate in an important democratic process and that\u2019s very empowering,\u201d she said. \u201cThe developer released a 7000-page statement and the community had four weeks to comment”. With EDO help they were able to overcome that. \u201cWe won graciously,\u201d MacDonald added.<\/p>\n

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.”<\/p>\n

\"Dr<\/a>

Dr Anne Poelina, member of the Nyikina Mungala people and a traditional custodian of the lower Fitzroy River in the Kimberley, and Councillor on Broome Shire Council.<\/p><\/div>\n

Dr Anne Poelina is a member of the Nyikina Mungala people and a traditional custodian of the lower Fitzroy River in the Kimberley. She\u2019s also a Councillor on Broome Shire Council. EDO WA is acting for Dr Poelina on objections to a coal mine near the Fitzroy River. \u201cThe environmental assessment system in Western Australia is compromised, and the EDO helped people understand and participate,\u201d she said.<\/p>\n

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: \u201cAfter we established the law had been broken, the EDO ran the case. We couldn\u2019t have done it without them.\u201d<\/p>\n

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.<\/p>\n

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.<\/p>\n

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 \u201cplays an extraordinary role in ensuring that meritorious cases are brought before the Court by skilled practitioners.\u201d<\/p>\n

Explanation, please<\/span><\/p>\n

\"On<\/a>

On Mt Hotham looking to Mt Feathertop, Victoria (Photo: John O’Neill. Source: Wikipedia).<\/p><\/div>\n

Through all of this, three broad arguments favourable to the EDO are clear.<\/p>\n

EDOs claim they address a fundamental inequality in the legal system, by providing\u00a0advice, and in some cases, legal representation to individuals and groups against government and commercial interests.<\/p>\n

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.<\/p>\n

EDOs believe if a government Minister\u2019s decision is unlawful, and provided it\u2019s in the public interest with reasonable prospects of success, it\u2019s right that it be challenged.<\/p><\/blockquote>\n

The NSW Mineral\u2019s Council, Minerals Council of Australia and the free market think tank, The Institute of Public Affairs, who have previously been critical of government\u00a0support for the EDO, have all been invited to respond to these specific issues. All have declined, relying on general statements.<\/p>\n

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.<\/p>\n

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. \u201cWord went around,\u201d Parnell said recently, \u201cabout pressure from government backbenchers who were asking \u2018why do we fund these bastards who challenge our decisions?’\u201d The EDO was able to mount a defence of itself and retained its funding, although restrictions were placed on their work. \u201cWe became a community legal centre who couldn\u2019t do legal work,\u201d Parnell said.<\/p>\n

Fighting the big end of town<\/span><\/p>\n

If EDOs close, or drastically cut services, people like Michael and Margaret in north Queensland will struggle when they need help.<\/p>\n

John Krey from Bulga said: \u201cthe 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.<\/p>\n

There\u2019s 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\u2019t like to fund bastards who challenge their decisions. ‘Bastards’ like the Environmental Defender\u2019s Office.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Graeme Gibson\u00a0 @1moretalk 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. \u201cIt\u2019s so thick sometimes […]<\/p>\n","protected":false},"author":7,"featured_media":16334,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"jetpack_publicize_message":"","jetpack_is_tweetstorm":false,"jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false}}},"categories":[3434,675,585,1687],"tags":[1702,1700,1279,1484,1697,236,1703,326,1701,1698,1699],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/archive.nofibs.com.au\/wp-content\/uploads\/2014\/03\/MINE.jpg?fit=800%2C400&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/p3t0mw-4dd","jetpack_likes_enabled":false,"jetpack-related-posts":[],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/16195"}],"collection":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/comments?post=16195"}],"version-history":[{"count":0,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/16195\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/media\/16334"}],"wp:attachment":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/media?parent=16195"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/categories?post=16195"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/tags?post=16195"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}