iMAGE: © Phil Roeder-FlickrunDER-MInInG PuBLIC TRuST – ThE RhETORIC Of LAwfAREexpression of individual rights to be
involved in decisions which affect
us, community objection rights also
improve government decision making
and public trust in government.^4
The benefits of having the ability to
challenge a development in the courts
are plentiful. In essence, they allow
the community to hold government
and industry to account, as well as
have the costs and benefits of major
projects that impact us, scrutinised by an
independent umpire. The mere existence
of the right to challenge decisions before
an independent arbiter gives the public
confidence that the decision-making
process has integrity rather than taking
place behind closed doors.
Spurious litigation or spurious
accusation?
So let’s ask the question, have these
valuable community rights been so
abused by frivolous and vexatious
litigation as to warrant their removal, as
premised by the ‘lawfare’ lobby?
The most common accusation
of ‘lawfare’ is in respect to the
communities challenging coal mines
in Queensland, such as the Alpha and
Carmichael coal mines in the Galilee
Basin or the New Acland coal mine on
the Darling Downs.
The challenges in the Federal Court
under the Environmental Protection
Biodiversity Conservation Act 1999 (Cth),
and proposals to amend section 487,
have been well considered elsewhere.^15
The other significant forum for these
community challenges, and accusations
of ‘lawfare’, has been the Queensland
land Court under the Environmental
Protection Act 1994 (Qld).
However there is not a single instance
where a community objector to the
land Court has been either:
a) found by the land Court to be
‘frivolous or vexatious’; or
b) the subject of an order under the
Vexatious Proceedings Act 2005.
It appears the only objector found to
be vexatious in the land Court was a
commercial competitor.^16
In September 2014 the report by the
Queensland Agriculture, Resources and
Environment Parliamentary Committee
on the Mineral and Energy Resources
(Common Provisions) Bill 2014, stated
that:^17
The land Court further confirmed
that, in its experience, there was no
evidence to suggest that
the courts [sic] processes
were being used to delay
project approvals:
In the court’s experience,
there have not really been
a lot of stalling tactics.
If there is, it generally
comes from both sides. It
is not just landowners or
objectors who generallyare not ready to proceed; it is also
often the mining companies that are
not ready.
This position was more recently
supported by the Queensland
Infrastructure, Planning and Natural
Resources Parliamentary Committee,
when considering the Mineral and
Other Legislation Amendment Bill 2016,
who noted in their committee report
that:
the majority of the committee
notes that only a small number
of appeals against mining leases
are lodged in the land Court each
year by environmental groups,
and the Minister is not bound by a
recommendation of the Court.
Despite mining stakeholders’ claims
that frivolous or vexatious cases are
extensively used by landholders and
other groups, the majority of the
committee was unable to find evidence
to support this view. 18
(Emphasis added)OCT–DEC 2017 AusTRAlIAN QuARTeRlY 15The use of the term ‘lawfare’ by industry lobbyists and politicians
appears not to be for commercial competitors or the adequacy
of existing safeguards, but rather reserved for landholders and
communities that have the temerity to access their rights to a
healthy environment through the court system.