Australia – King of Climate Lawfare

Andrew L. Urban

On a per capita basis, we have the most climate lawsuits in the world. Activists launched 127 climate lawsuits in Australia from the 1990s to 2022, according to new research by the Menzies Research Centre.

In Australia, the relatively low bar for launching court actions is an obvious vector for activists to pursue corporate and environmental activism. Groups like the Environmental Defenders Office take advantage of laws that purport to protect the environment to block projects on ideological grounds.

Coincidentally, Tony Abbott pinpoints why this is so, in an interview in the Sunday Telegraph (June 30, 2024).

“The Howard government introduced a lot of legislation,’’ Abbott says. “But sometimes, through, I think, inattentive ministers and overzealous bureaucrats, and, occasionally, just to get legislation through the Senate, they put stuff in which has turned out to be quite a problem.’’

One of those “problems’’ passed under the Howard administration was the Environment Protection and Biodiversity Conservation Act 1999. Inside the Act is a clause which helped create the lawfare that we now see sabotaging every major development program.’’

“Normally to bring an action, you have to have an interest and, at law, an interest normally means a financial interest,’’ Abbott explains.

Under the 1999 Act, the definition of an interest was changed to allow anyone with an “interest’’ whether political or philosophical, to legally oppose the development, allowing a Sydney environment centre to bring an action against a Queensland mine.

It also explains how in 2021 eight 16-year-old Victorian schoolchildren brought a case to prevent the approval of the Vickery coal mine extension in northern NSW. The plaintiffs alleged that the Minister owed them a duty of care not to cause them harm by granting the mine exemption. That was sympathetically heard by Justice Mordecai Bromberg. The ‘evidence’ of a single researcher from Australian National University was sought by Justice Bromberg … but fortunately his decision in favour of the plaintiff kids was later overturned by adults.

How to unscramble that legal egg is not an easy task, according to Abbott. He knows because he tried it when he was prime minister.

“As a demonstration of the real impact these groups are having, our research found that the top 25 environmental activist groups have been growing at a faster rate than the industries they are targeting,” says the MRC. “With revenue and staff doubling over the last few years.

“In 2015, the Environmental Defenders Office had 14 staff and a $3m budget. Last year they had grown to a team of 105 staff and a budget of $13.3m.

“In February 2024, Federal Court Justice Natalie Charlesworth slammed the conduct of the taxpayer funded Environmental Defenders Office in a class action against a gas project in the Northern Territory.

“In this case, the EDO used Indigenous consultation requirements as a backdoor for environmental lawfare. They were found to have engaged in dishonest ‘coaching’ tactics and misrepresentation of local Indigenous knowledge.

“The case concerned Santos’ construction of a gas pipeline 7km off the coast of the Tiwi Islands as part of the $5.8 billion Barossa Gas Project. The case had already been delayed in 2022 due to concerns over potential underwater cultural heritage.

“A lawyer for the EDO and an anthropologist who ought to have had a “neutral attitude in the ultimate outcome” of the case were found to have urged local groups to recount their cultural heritage to relocate stories into the vicinity of the pipeline. EDO representatives said a cultural mapping exercise was “Indigenous led”. This was found to be false.

“The EDO’s ‘independent’ expert was, in fact, found to have a “lack of regard for the truth, lack of independence, and [a] lack of scientific rigour”.

“One of the local Indigenous claimants said he had been “tricked” by the EDO’s expert witness. It was asserted that this expert “lied” to the Tiwi Islanders because he wanted his work to be used to stop the project. This individual was found to have manipulated Tiwi Island Indigenous groups into holding “genuine” concerns based on maps and evidence that had been “wrongly presented to them”.

“Justice Charlesworth’s finding is an indictment on the EDO who sought to distort Indigenous testimony to support an ideological agenda. The $5.8 billion project was finally given the green light in January 2024, after nearly three years of litigation.”

Andrew L. Urban is the author of Climate Alarm Reality Check (Wilkinson).

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