Water Journal : Water Journal November 2015
NOVEMBER 2015 WATER While the government at the time was not prepared to introduce an 'open standing' provision, the 'representative standing' that Section 487 provided was deemed an appropriate inclusion.2 Section 487 was worded so that it allowed environmental and conservation groups seeking to bring public interest proceedings to be able to automatically satisfy the standing requirements. All that needed to be proven was that in the two years preceding the action, the groups had, by their objects of association, committed themselves to involvement in activities for the protection, conservation or research into the environment. IMPACTS OF ABOLISHING SECTION 487 The direct and most explicit impact that will ow from the abolition of Section 487 of the EPBC Act will be the inability of environmental, conservation and community groups to bring public interest actions. These actions seek to ensure, through judicial oversight, that the provisions of the EPBC Act have been adhered to and that decisions made by the Federal Minister accord with the interests of the broader community. Environment and conservation groups, such as the Environmental Defenders Of ce, play an important role in protecting the environment through public interest actions. Most environmental groups seek to ensure that decisions affecting the environment and our biodiversity are conducted rigorously, with strong risk management processes and in a manner that is consistent with public expectations regarding the management and conservation of matters of national environmental signi cance. There is no de nitive outline as to what constitutes a 'public bene t' action, although it has been de ned generally to refer to an action that seeks to review a decision affecting a wider group of people than those directly and privately affected. In this respect, a public bene t action is generally initiated by an applicant who has no private interest in the outcome of the decision.3 Decisions made under the EPBC Act are highly amenable to public interest actions because they often impact Crown rather than private land and, therefore, judicial oversight is only possible where actions are launched by non-private stakeholders. Removing the representative standing provision in Section 487 of the EPBC Act effectively reverts the law to the general law concept of 'private rights' standing. Private right standing assumes that the function of the judiciary lies purely in the protection of individual rights and interests, and protecting broader community interests is the responsibility of the government.4 ROLE OF JUDICIARY IS VITAL The dif culty with a private right framework is that it assumes that courts should not provide the machinery for public accountability. However, given the emergent concerns associated with climate change, water degradation, chemical contamination, resource con ict and the increasing risk to longer-term biodiversity, the role of the judiciary in public accountability for decisions affecting matters of national environmental signi cance has never been more important. A representative standing provision that supports the ability of environmental and conservation groups to seek judicial review is an extremely important component of representative government. It is also an important element in the broader social licensing process. Community approval for projects that impact matters of national environmental signi cance is predicated on the assumption that environmental groups and organisations have the capacity to seek judicial oversight if a concern regarding the approval process is raised. This was clearly apparent when the Mackay Conservation Group sought judicial review of the decision by the Federal Minister to approve a coal licence for the Adani coal mine. In seeking this review, the Mackay Conservation Group was acting on behalf of the public. The members were seeking to ascertain, among other things, whether the scope of the EPBC Act required the Federal Minister to take account of the climate change implications owing from the authorisation of a large coal- red plant in an area adjacent to the Great Barrier Reef National Park. The issues that were the subject of the review had both a domestic and a global relevance. Without Section 487(2) this action could not have been brought. Removing Section 487(2) will signi cantly reduce the incidence of judicial oversight of the EPBC Act because fewer parties will have standing to bring an action. Private landholders may establish private standing to seek judicial review where their land is directly affected, however, in many instances, decisions affecting matters of national environmental concern are in areas owned by the Crown. If representative standing is abolished, it will be extremely dif cult to locate parties with standing to seek judicial review over matters of national environmental signi cance located on areas of Crown land. CONCLUSIONS Diminishing the options for judicial oversight naturally means that applications under the EPBC Act are unlikely to be as thoroughly examined as might otherwise have been the case. This is a signi cant concern. Sustaining strong environmental management in the face of ever increasing environmental risks and impacts owing from expanding resource demands, technological innovation and climate change is profoundly important. Reducing the capacity for judicial oversight under the EPBC Act is contrary to its underlying objectives. These objectives seek to ensure that areas of national environmental signi cance are strongly protected and that environmental review processes are rigorously upheld. This is very dif cult to maintain where relevant stakeholders are unable to establish standing. One of the main purposes of judicial review is to ensure that the powers exercised by the government remain within their legal bounds and, in so doing, protect the citizen against the potential abuse of such power. The removal of Section 487(2) effectively makes the public susceptible to an abuse of power under an act whose primary purpose is to provide the public with greater protection and review of environmental assessment processes relevant to areas of national environmental signi cance. In this respect, the proposed abolition is specious and unsound. 7 My Point of View 3 Ibidat6. 4 C Harlow 'Public Law and Popular Justice' (2002) 65 Modern Law Review 1, 5. The abolition of the standing provision has implications for parties such as environmental groups opposed to coal mining.
Water Journal September 2015
Current Feb 2016