From 1 July this year, one of the pillars of environmental justice is about to be torn down – that is, Legal Aid will no longer be available for public interest environmental cases. It’s been a longstanding part of the architecture for 27 years.
But let’s step back a little. Why does this matter?
Environmental justice is often about access – that is, the ability of concerned community members to protect the environment through the Courts. NSW has long had an iconic right for any person to take action to stop a breach of the law – a broad provision which has meant that Courts have concerned themselves with the substance of a matter, not whether someone is entitled to be there. But that right means little without more. As Justice Toohey of the High Court once said:
“There is little point in opening the doors to the Courts if people cannot afford to come in.”
Legal Aid has allowed people to come in – not willy nilly, as some might say, but where strict means and merits tests warrant it.
It enabled a number of legal cases that tested forestry practices and environmental impact assessment in the early 1990s, saving vital forests. In a similar vein, it has contributed to our understanding of the law, through allowing for test cases on novel points of law. The high profile Walker case, the first case in Australia to consider the impacts of climate change on a proposed development is testament to this tradition.
More recently, it has helped to achieve better environmental outcomes for coal-affected communities (witness the decisions in the Hunter with the Ulan and Duralie mines), or to turn back an unsustainable developments (such as an abalone farm in Port Stephens).
Importantly also, Legal Aid has been crucial to keeping accountability and transparency in the environmental and planning system – holding decision-makers to account and ensuring the system works as it should.
All this – better environmental outcomes, the proper administration of justice and accountability and transparency – will be in doubt once 1 July ticks over.
*Jeff Smith is the Executive Director of EDO NSW.