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Precedent (Australian Lawyers Alliance) |
EROSION OF PUBLIC PARTICIPATION RIGHTS
REFLECTIONS OF A RETIRED ENVIRONMENTAL LAWYER AND MP
By Mark Parnell
One of the most consistent and depressing themes in environmental law over the last several decades has been the erosion of public participation rights.
This includes ‘soft’ rights, such as the right to make a submission or have your say. It also includes ‘hard’ rights, such as the right to appeal against the merits of government decisions. Also being eroded are basic rights of judicial review such as the ability of environmental advocates and groups to insist that proper processes be followed and the environment be properly protected. Less obvious erosions are at the parliamentary level, where the ongoing tension between the Executive and the Legislature sees the former prevailing over the latter more often than not.
This article uses some SA examples from recent decades to show how this erosion is achieved, and why lawyers should be concerned at the implications.
When it comes to the environment, governments have long realised that when they don’t have science on their side, or when they are doing the bidding of their corporate donors, or facing resistance from the community about a project, the best approach is to make sure that their decisions are beyond challenge.
The proposed nuclear waste dump in SA is a recent national example. The National Radioactive Waste Management Facility will be designed to permanently dispose of low-level nuclear waste (for example, medical waste) and potentially store intermediate-level waste (for example, nuclear reactor waste from Lucas Heights in NSW) on a temporary basis until a more permanent solution can be found. This is a project that has pitted federal and state and territory governments against each other for decades. SA went so far as to pass special state legislation back in 2000 to make it clear that nuclear waste dumps were illegal within the state.[1] Nevertheless, the federal Government has proceeded to override the state laws through its own legislation.[2]
Remarkably, the debate in the Senate over the enabling Commonwealth legislation was not so much about whether the dump was actually needed, but rather about how to make sure that the decisions of the Minister for Resources could not be challenged in court, particularly by First Nations representatives or conservation groups. The original Bill identified Kimba in SA as the site of the facility. As a decision of Parliament, that would have been very difficult, if not impossible, to challenge. Following amendments, the Bill now provides a short list of locations, with the Minister for Resources making the final decision. While Kimba will again certainly be chosen, that will then be an administrative decision subject to review pursuant to the Administrative Decisions (Judicial Review) Act 1979 (Cth).
Ultimately, amendments to the Bill were passed to enable judicial (but not merits) review.[3] This ‘concession’ was hard-fought and ultimately overshadowed the more important threshold question about whether moving dangerous intermediate-level nuclear waste from one ‘temporary’ storage site to another (Lucas Heights to Kimba) was a good idea.[4]
For decades, conservationists have fought to have safeguards and checks and balances included in decision-making processes, with some success.[5] Now many of these protections are being dismantled. Important accountability measures are being characterised by governments as unnecessary. We are told that these measures impede progress, do not improve decisions, and cause great harm to the economy.[6]
I suppose it has always been thus. The language might change over time, but phrases like ‘business certainty’ and ‘efficient decision-making’ are usually euphemisms for ‘let’s make sure those pesky environmentalists and their even peskier lawyers can’t interfere with the right of the government to make whatever decision it likes, regardless of the impact on the environment or what the public might think.’
I came to this conclusion early on in my career as an environmental advocate. In my time with national conservation groups and as a lawyer with the Environmental Defenders Office (EDO) in SA, I saw many cases where relevant information and important stakeholder views were deliberately withheld from the decision-making process.[7] Even when conservation groups did manage to get a foot in the door, I saw successful environmental challenges quickly overturned by executive action and the door firmly shut to further challenge.[8]
I started working for the EDO two days after John Howard won the 1996 Federal election. Immediately the pressure was on from business interests to cut the organisation’s legal aid funding. Prominent business leaders such as the late Keith Williams of Port Hinchinbrook fame[9] lobbied on the basis that it did not make sense to fund environmentalists to challenge government decisions over development.
Fortunately, the legal profession rallied behind the EDOs and the funding was maintained, but with conditions, including a ‘no litigation’ restriction.[10] We were, at the time, the only part of the legal aid family of services not able to use legal aid funding in the courts on behalf of our clients.
My subsequent 15 years as a legislator in state Parliament were equally frustrating. I opposed the inadequacies at every opportunity, but, regardless of who was in power, their philosophy was the same: make it as hard as possible (and preferably impossible) to challenge Government decisions on environmental grounds. That philosophy now permeates the statute books. In the state of SA, whether explicitly or by omission, many of our Acts, regulations and other statutory policy instruments deny citizens a voice and any meaningful engagement in many decisions that affect them personally and affect the environment more generally.
Below is a description of some of the deliberate tactics used to prevent or undermine more genuine public participation in environmental decision-making.
In a famous 1999 case, the Conservation Council of SA successfully overturned the approval for 42 tuna feedlots in the sea near Port Lincoln on the grounds that the development was not ‘ecologically sustainable’.[11] The decision of the Environment Resources and Development Court in what was then the state’s longest ever environmental trial stood for about a week before the Government passed new regulations (now superseded) declaring that henceforth such developments would be beyond legal challenge. The developers relodged their defeated applications, which were then duly approved with no ability for objection. The relevant Planning Scheme was also eventually changed to remove the term ‘ecologically sustainable’, once it became apparent that these words actually had some meaning.[12]
It was that experience that convinced me that over-reliance on the courts has serious limitations and if I really wanted to help defend the environment I needed to be closer to where the laws were being made. (Incidentally, given the ‘litigation restriction’ imposed on EDOs by the Howard Government, the EDO had to do its own fundraising to defend the action opposing the development application.)Given that Australia is one of the most urbanised countries in the world, it is not surprising that urban developments, particularly urban sprawl, feature prominently in the rollcall of environmental disputes. One development, in SA, involved rezoning farmland for housing on the urban fringe of Mount Barker. This rezoning process did involve public consultation, including lengthy public hearings which ran for over five nights, for 15 hours in total. Every one of the hundreds of representations was opposed to the plans for urban sprawl, yet the Government’s hand-picked ‘Advisory Committee’[13] that heard all the objections waved it through with minimal changes[14] and the Minister then gazetted 1,300ha of farmland for urban use.[15]
In a subsequent Ombudsman’s inquiry, it was found that the Government’s planning consultant was also working for the private property developers who had bought up the farmland in anticipation of rezoning, but by then the horse had bolted.[16] No amount of hand-wringing and no number of mea culpas could wind back the clock or return the farmland.
In SA, proposals to rezone land or change planning rules must be referred to the state Parliament, which has the power to disallow the changes. The catch is that the legislation provides that a disallowance motion can be moved only if the Environment, Resources and Development Committee of the Parliament agrees.[17] When you look at the make-up of the Committee, you will find that it comprises equal members of both Houses, but that the chairperson (who has both a deliberative and a casting vote) must come from the Government-controlled Lower House.[18] The result is a stacked committee that rarely challenges the Government.
One recent dispute was over the rezoning of an old industrial site in Adelaide’s inner suburbs. There was agreement that this under-used site could be redeveloped, but disagreements persisted over building height and density. When one of the Government’s committee members was absent from a meeting, the non-Government MPs were able to use their numbers to support disallowance – for the first time since the Development Act 1993 (SA) (Development Act) came into force 25 years earlier.[19] This bought time for the developer and local residents to negotiate a mutually acceptable outcome for future development. The zoning rules were adjusted and the disallowance motion was quietly dropped, with no fanfare or publicity.[20] The question remains, though, why it should take the absence of an MP from a committee meeting to deliver proper public participation and an outcome that suits all parties.
One of the frustrations of tackling massive global problems such as climate change is the difficulty with convincing government planning bodies that they have a role to play. Most jurisdictions now have statutory planning policies dealing with climate change that tend to focus on ‘adaptation’ rather than ‘mitigation’. This tends to take the form of not allowing building too close to the coast in case sea levels rise and buildings are flooded, but seeming not to consider as relevant the issue of whether the planned development would help to drive climate change in the first place.
For example, in SA, the State Planning Commission is responsible for assessing significant new developments, including new fossil fuel power stations. Following good planning practice, the officers involved have taken great care to explore visual amenity, traffic implications and noise levels; however, they have not paid attention to the fact that burning fossil fuels to generate electricity is bad for the climate.[21] Surely this is something that we need to stop doing as a matter of urgency? I ensured in my last few years in Parliament that I always attended planning hearings for new gas power stations and always raised climate change impacts as my main submission. My objections, though heard politely, had no effect.
Planning authorities might be hamstrung by ‘existing use rights’ in relation to existing fossil fuel power generation facilities, but when it comes to brand new facilities my experience is that the proponent has not been asked to estimate the emissions.[22] When challenged, the best planning authorities can offer is acknowledgement that climate change was raised in submissions, without taking responsibility for addressing the issue in a planning context. Accordingly, I have raised this concern many times in Parliament, in the media and in other contexts: ‘What planet do these people live on?’.[23]
Most people don’t get particularly excited by the prospect of making submissions on government policies, but when the bulldozers turn up to start clearing the bushland or laying concrete slabs it is easy to fill the local hall with protesters. It is cold comfort to be told at this time, ‘It’s too late now – you should have made a submission five years ago when we consulted over the rezoning’.
An important part of this strategy for the Government is regulating that consultation can be on ‘planning policy’ only, with no opportunity for public comment when actual development applications are eventually lodged. It’s the ‘wedding clause’: speak now, or forever hold your peace! For example, a government might consult on, and eventually adopt, a general policy that allows it to identify suitable areas for nature-based tourist accommodation. Then, when it decides to support a development of exclusive private cabins and lodges in unspoilt wilderness in the middle of a national park, environmentalists are told they can’t be heard.[24] The hand-picked government assessing body[25] can simply shrug its collective shoulders, since it is legally prohibited from considering any submissions or from hearing any public concerns.[26] It will hear only from the proponent developer and perhaps a few government agencies. It will approve most applications that come before it.[27] Further, often even the development plans are not available for public view.
That is precisely what happened with the iconic Flinders Chase National Park on Kangaroo Island.[28] Despite courageous judicial review proceedings instituted by local conservationists against the development,[29] the project was all set to proceed until the devasting bushfires of 2019–2020 decimated the National Park. The fires were a tragedy for Kangaroo Island, but the SA Government’s denial of the basic rights of public participation was a serious hit to democracy as well.
However, despite this depressing backdrop of the denial of public rights, I am continuously heartened by and amazed at the resilience of communities. They know they are up against it, but they fight on. Sometimes the fight is conducted in the courts, but when those avenues dry up direct action is put back on the table. Iconic environmental battles such as the fight to save the Franklin River in the 1980s used every tool in the shed – legal action, direct action, community education and political pressure.
Movements like Extinction Rebellion[30] are born out of regulatory and institutional failure. These groups include lawyers who realise that putting all your trust in these legal and political institutions will not deliver the change that is needed. If our political and legal processes were up to the task of properly protecting the environment, dealing with the climate crisis and reversing our appalling loss of biodiversity, then no one would need to lie on the road to block traffic or ‘superglue’ themselves to anything.
After a lifetime of working for the environment in the law and in politics, my message to campaigners and their lawyers is pretty simple. Don’t give up entirely on legal and political institutions, but be clear-eyed about the limitations of the system. As a politician my advice to constituents, and as a lawyer my advice to clients, was: ‘Don’t put all your eggs in one basket, and always have another plan ready as well, because more often than not the institutions will let you down.’ When it comes to reforming the law and policy, it would be very helpful if more lawyers would step up individually, in addition to participating as part of a representative body. As a legislator, I always appreciated the advice of the SA Law Society and Bar Association; however, their submissions are generally around legal principles and processes, rather than advocating particular environmental outcomes. The environment has many great friends in the legal community. It would be wonderful to see more of them using their influence to help change procedures and institutions for the benefit of the environment and future generations.
Mark Parnell has spent the last 31 years working for the environment. This includes 15 years as a Greens Member of the Parliament of SA, 10 years as a solicitor in environmental law with the EDO and 6 years with state and national conservation groups. He is now working with community groups and campaigners to help demystify the workings of Parliament. EMAIL mark.parnell.formermlc@gmail.com.
[1] Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA).
[2] National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Bill 2020.
[3] K Jenkins, ‘Traditional owners can challenge nuclear waste dump on Country’, NITV News (Media release, 23 June 2021) <https://www.sbs.com.au/nitv/article/2021/06/23/traditional-owners-can-challenge-nuclear-waste-dump-country-1>.
[4] Friends of the Earth Australia, ‘Kimba nuclear dump: Premier Marshall must enforce SA legislation’ (Media release, 21 June 2021) <https://www.foe.org.au/kimba_nuclear_dump>.
[5] For example, the inclusion of ‘civil enforcement’ rights in planning, pollution and some natural resource legislation in SA. See Development Act, s86; Environment Protection Act 1993 (SA), s104; and Natural Resources Management Act 2004 (SA), s201.
[6] First Dog on the Moon, ‘Green tape! It's destroying our booming economy just to protect those fur-covered things’ (cartoon), The Guardian, 29 June 2020 <https://www.theguardian.com/commentisfree/2020/jun/29/green-tape-its-destroying-our-booming-economy-just-to-protect-those-fur-covered-things>.
[7] For example, the Development Act, s38(17), provides that representations on development applications from anyone other than immediate neighbours ‘[are] not required to be taken into account’ and ‘will not have any effect’.
[8] For example, in 2000, following the Conservation Council of SA’s win in the case referred to at notes 11 and 12 – the ‘Tuna feedlot’ case (see <https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/1409/attachments/original/1429164947/impact_57.pdf?1429164947>) – the Government passed new regulations to prevent future legal challenge. The defeated development applications were relodged and approved with no opportunity for third party appeal.
[9] ABC News Online, ‘Sea World founder Keith Williams dead’, 20 October 2011 <https://www.abc.net.au/news/2011-10-19/gold-coast-theme-park-developer-dead/3579052>.[10] C Gosper, ‘Government gags EDOs’, green left (25 June 1997) <https://www.greenleft.org.au/content/government-gags-edos>.
[11] Cons Council of SA v Dac & Tuna Boat Owners Assoc (No. 2) No ERD-99-357, ERD-99-378, ERD-99-399, ERD-99-420, ERD-99-441, ERD-99-462 [1999] SAERDC 86 (the ‘Tuna feedlot’ case).
[12] The ‘Tuna feedlot’ case, ibid, was determined on planning principles contained in the relevant ‘Development Plan’. The principles of development control under the old Land Not Within a Council Area (Coastal Waters) Development Plan under the Development Act have been amended many times; however, the specific requirement that all development in coastal waters must be ‘ecologically sustainable’ has never again been included.
[13] Members of the Development Policy Advisory Committee (DPAC) under the former Development Act were appointed by the Minister for Planning. The author was briefly a member of this Committee during the early 2000s.
[14] The DPAC advice to the Minister was initially kept secret, but was eventually published and can be found in the archives. See <https://www.dpac.sa.gov.au/__data/assets/pdf_file/0013/113332/Mount_Barker_Urban_Growth_DPA_Report_to_the_Minister.pdf> p 8, for reference to the fact that every submission over five hearings was opposed to the rezoning.
[15] Government of SA, Department of Planning, Transport and Infrastructure, Development Plan: Mount Barker District Council (Plan, 2017) <https://www.mountbarker.sa.gov.au/hprm/development-plan?RecordNumber=DOC%2F17%2F80392>; M Sutton, ‘Farmers fight re-zoning’, Farm Online (4 February 2011) <https://www.farmonline.com.au/story/3629784/farmers-fight-re-zoning/>.
[16] N Harmsen, ‘Ombudsman slams development “conflict of interest”’, ABC News (Media release, 6 March 2013) <https://www.abc.net.au/news/2013-03-05/ombudsman-report-mount-barker-development/4553932>.
[17] Planning, Development and Infrastructure Act 2016 (SA), ss46 and 74.
[18] Parliamentary Committees Act 1991 (SA), s8.
[19] There was some discussion in the Committee about whether there was one other case from the early 1990s, but, while it may have reached the Legislative Council Notice Paper, there is no record of its being debated. Regardless, the process is very rare given the hundreds of rezonings that the Parliament has considered over the years.
[20] The motion disallowing the rezoning was ‘discharged’ from the Notice Paper of the Legislative Council on 4 December 2019 following agreement between the property owner, local residents, the government and the local Member. So it was never debated on the floor of Parliament, but was unanimously ‘discharged’ with only the author offering an explanation of it. See <http://hansardpublic.parliament.sa.gov.au/Pages/HansardResult.aspx#/docid/HANSARD-10-28804> .
[21] Advice from the SA State Commission Assessment Panel (SCAP) is not generally published, but redacted copies can be obtained under the Freedom of Information Act. For example, the advice from SCAP to The Hon John Rau MP, Minister for Planning, on 15 February 2018 in relation to a proposed Alinta Energy gas/diesel power station at Reeves Plains (SA) acknowledged that climate change was raised as an issue by representors, but stated that ‘consideration was not able to be given to the wider strategic implications of the proposal as raised in public representations.’ In other words, it was not the job of this body to assess the proposal against climate change policy.
[22] This is my experience, having studied many development applications for fossil fuel power stations. In SA, even where public submissions are allowed, copies of development applications are routinely pulled from the Government website after the hearing. Rather than maintaining an ‘archive’ of old applications, the State Planning Commission required Freedom of Information applications before releasing documents that were briefly freely available. At time of writing, the practice of removing documents still persists. See under ‘Previous Meetings’ at <https://www.saplanningcommission.sa.gov.au/scap/about_scap/commission_meetings>.
[23] M Parnell, ‘Revised Phase Three (Urban Areas) Planning and Development’ (Submission, 18 December 2020) <https://plan.sa.gov.au/__data/assets/pdf_file/0008/762677/Parnell,_Mark.pdf>.
[24] At the hearing the Presiding Member of the State Commission Assessment Panel acknowledged the strong public interest in the development, and the frustration of opponents at not being able to make representations. This resulted in the proponent accusing the Presiding Member of not being impartial. See <https://www.adelaidenow.com.au/business/sa-business-journal/the-company-which-wants-to-build-sleeping-pods-on-kangaroo-island-says-the-lengthy-approvals-process-has-been-sidetracked/news-story/3dd08a8e38fb7104145d685bc722234d>.
[25] Under the Planning, Development and Infrastructure Act 2016 (SA), the Governor on the recommendation of the Planning Minister appoints members to the State Planning Commission and Assessment Panel.
[26] Under the Planning, Development and Infrastructure Act 2016 (SA) and its predecessor, the Development Act, the right to make a representation either in writing or in person is limited to certain categories of development, mainly those that are well outside the contemplation of the relevant planning scheme or zone. In relation to private tourism developments inside Flinders Chase National Park, the Chair of the SCAP said it was ‘unfortunate’ that the public was excluded from the process: <https://www.adelaidenow.com.au/business/sa-business-journal/controversial-kangaroo-island-accommodation-plan-wins-development-approval/news-story/2fa70e8ec34a652866908938d61cfc0f>.
[27] S Richards, ‘What is SCAP? Inside Adelaide's powerful planning body’, InDaily, 23 October 2020 <https://indaily.com.au/news/local/2020/10/23/what-is-scap-inside-adelaides-powerful-planning-body/>.
[28] The Greens SA, ‘SA State Planning Commission advised to approve trashing of Kangaroo Island wilderness’ (Media release, 21 May 2019) <https://greens.org.au/sa/news/media-release/sa-state-planning-commission-advised-approve-trashing-kangaroo-island-1>.
[29] S Gorton, ‘KI Eco-Action lodges proceedings in Supreme Court over AWC approval’, The Islander (Media release, 21 August 2019) <https://www.theislanderonline.com.au/story/6340260/ki-eco-action-lodges-proceedings-in-supreme-court-over-awc-approval/>.
[30] See <https://rebellion.global/about-us/>.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/70.html