Usual suspects line up for new attacks on EDO NSW

JEFF SMITH*

Friends, supporters and observers of EDO NSW may have noticed a new round of attacks on our public interest environmental law office in recent days and weeks, via the usual suspects of the NSW Minerals Council and The Australian newspaper.

While these reports are short on ‘news’ and run long on rehashing earlier attacks on EDO NSW, they are clearly aimed at trying to politicise our role as an independent community legal centre that specialises in public interest environmental law.

Our EDO NSW team takes the sometimes hysterical tone of The Australian’s reporting about our office with a large grain of salt, however, we do find headlines like ‘Public-funded EDO circus must end’ quite offensive. We think many of our supporters will feel the same way.

Last Friday The Australia’s legal correspondent sought to seize on written comments by our outgoing Chair Murray Wilcox AO QC, the distinguished retired Federal Court judge, who reflected on over 6 years at the helm of our Board in his final contribution to EDO NSW, published last month in the 2012/13 annual report.

Readers of this post can assess the content of the most recent stories for themselves here:

As Mr Wilcox noted, the EDO NSW is a law office not a campaign one. Our team is made up of lawyers, scientists and other professionals and support staff, who provide professional, expert and independent legal advice to individuals and community groups. We have clear and robust standards in place to determine when we will take on a case, and indeed when we will provide written advice – namely, that the matter needs to satisfy our public interest guidelines.

We receive funds from a range of sources, including a sizeable proportion which is not taxpayer funds, and we are always scrupulous in ensuring that we meet the obligations set out in funding and grant agreements.

It is also worth noting that when EDO NSW is acting for any client in a litigation matter, such cases are public hearings, and our clients are disclosed on our website and via our annual reports.

Where legal cases we work on end up before a court, which is only a small fraction of the work we do, we act on behalf of community-based clients who have satisfied us – and a senior barrister – that they have rights to be heard under law. Which of course is why our system has courts in the first place, and why due legal process is a core component of our healthy democracy.

*Jeff Smith is the Executive Director of EDO NSW.

FOOTNOTE: Also for the record, the following was sent to The Australian last Friday as a Letter to the Editor.

LETTER TO THE EDITOR, THE AUSTRALIAN
In rehashing mining industry-led criticisms of EDO NSW, your legal correspondent Chris Merritt (Taxpayers still fund anti-coal disputes, 1/11/2013) continues to muddy the waters about the source of grant monies from the Public Purpose Fund of the Law Society of NSW, or PPF. While the NSW Government of the day has always had a consent control over grants made by the PPF Trustees, the actual monies are not taxpayer funds, but rather the accumulated interest earnings on client funds held in solicitors’ trust accounts in NSW. It is a longstanding tradition that the PPF makes regular grants to community legal centres providing public interest services, including EDO NSW, among other recipients. The PPF is fully informed about the work undertaken by EDO NSW as an independent, not-for-profit, specialist public interest environmental law office that has served the community of NSW since 1985.

Jeff Smith
Executive Director

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EDO NSW case “epitomises” public interest litigation

ELAINE JOHNSON*

The Land and Environment Court has found that a case brought by EDO NSW on behalf of the Fullerton Cove Residents Action Group to protect the environment “epitomises the very concept of litigation properly brought in the public interest.” 

The Court ordered that, even though they lost the case, the residents should not have to pay the legal costs of the Department of Trade & Investment. The Court also ordered the Department to pay the legal costs of the residents group in disputing the costs of the court case.

What was the case about?
The residents group had challenged an approval of a CSG pilot project located on a floodplain, adjacent to an internationally-listed wetland, with wells that will continuously extract gas and water from depths of 800-900 meters for at least 12 months.

The residents went to Court because they were concerned that there had been no groundwater assessment, and a full Environmental Impact Statement should have been prepared to assess impacts on biodiversity and groundwater.

In March this year, the Court dismissed the residents group’s case, finding that the groundwater and biodiversity assessments met the standards set by our planning laws. After judgment, the Department pursued the residents for its legal costs. The CSG company, Dart Energy, did not.

What did the Court say about costs?
The Court ordered that because the residents group’s case was genuine public interest litigation, it should not have to pay the legal costs of the Department in responding to its appeal.

During the hearing on costs, the Department argued that the residents weren’t really concerned about the environment, they just wanted to stop the development at Fullerton Cove.

The Department extensively cross-examined both the residents group and EDO NSW about the residents’ motivations in bringing the case. However, according to the judge, the cross-examination “only served to reinforce the genuineness of Fullerton’s contention that it had commenced the litigation in the public interest in order to protect Fullerton Cove from what it perceived to be an inadequate assessment of the potential adverse consequences of coal seam gas exploration in that environmentally sensitive area.”

The Court also rejected the Department’s arguments that the case didn’t raise any new points of law and had little merit. Instead, the judge found that “not only did the litigation raise one or more novel issues of general importance, but that the litigation has contributed in a material way to the proper understanding, development and administration of the law.”

The Court also ordered that the Department pay the residents group’s own legal costs of having to dispute the costs of the litigation.

EDO NSW had written to the Department on a number of occasions, urging it to accept that the resident group’s case was public interest litigation. On each occasion, the Department declined the group’s offers.  The judge described the Department’s responses as, “for a model litigant, less than fulsome and unhelpful in the circumstances.”  The Department must now pay the residents group’s costs of arguing the point.

Why do we have special rules for public interest cases?
The Land and Environment Court has special rules in place which are designed to facilitate access to justice in exactly these kinds of cases. If a case is genuinely brought in the public interest, the person bringing the case should not be punished with a costs order simply because they lost.

If the law were to allow the general public to be frightened away from the Courts by the prospect of adverse costs orders worth tens of thousands of dollars, there would be little point in allowing those people access to justice in the first place.  As Justice Biscoe of the Land and Environment Court said recently in another public interest case (Friends of King Edward Park v Newcastle City Council):

“There is little point in the legislature opening the door to public participation in this way if the doorway is then blocked by a menacing costs hound which threatens to savage the responsible public interest litigant who dares to enter and loses.”

*Elaine Johnson is a Senior Solicitor at EDO NSW.

Can community members afford access to justice?

KIRSTY RUDDOCK*

Being exposed to cost orders in the courts is one of the major impediments to community members starting or continuing litigation to protect the environment in the public interest. Recently, there was a decision in the Land and Environment Court of NSW that will have significant consequences for community groups seeking to enforce breaches of planning or environmental laws in the future.

The case

In Illawarra Residents for Responsible Mining v Gujarat NRE Coking Coal Ltd [2012] NSWLEC 259, Justice Sheahan has taken a narrow view of whether a residents group concerned about the impacts of mining on their community represents the public interest. He has ordered Illawarra Residents for Responsible Mining (represented by EDO NSW) to pay $40,000 as security for Gujarat’s legal costs to the Court before the case was allowed to proceed. Unsurprisingly the group could not pay this amount and the case has been discontinued.

The consequences

As a result, the issue of whether Gujurat’s current mining activities were unlawful because longwall mining had proceeded without an assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW) will not be determined. This means that the community will not have the opportunity to comment on the plan for underground mining under the drinking water catchment of the Sydney and Illawarra region.

The precedent

This judgment could now be used by other mines and property developers to stifle future public interest litigation. In particular, Justice Sheahan did not accept the evidence from the public officer of the group that the order would mean the proceedings could not continue, and indicated that only evidence from all of the members of the group that they personally could not raise the money necessary to post security would have been enough to satisfy the Court’s concerns.

EDO NSW perspective

In this case, the residents were “mums and dads” who lived near the mine and were concerned not only about the public health issues associated with coal dust from the mine’s operation next to their homes, but the environmental impact of the mine on the escarpment’s biodiversity and drinking water catchment. It appears the Court considered these concerns to be merely about “amenity”.

Our conclusion

  • Fundamental to our current planning system is the need to ensure that rigorous environmental assessments occur and strict conditions are placed on approval of projects that could have a significant impact on the environment.
  • Without enabling the community to have a say through a proper environmental assessment, what checks and balances are there to ensure that mining is done to the best environmental standards?
  • Security for costs orders in such circumstances result not only in the denial of access to justice, but mean that our planning laws will continue to be undermined.

It is therefore vital that planning system reforms ensure that community groups are not impeded in accessing justice and good planning and environmental standards in the future.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW