The Adani juggernaut and democratic processes: Do our governments really believe in the rule of law?

 

Adani’s Carmichael mine in Queensland’s Galilee Basin is set to become Australia’s largest coal mine, taking up an area five times the size of Sydney Harbour. The Indian mining company’s $21bn project will have six open-cut pits and up to five underground mines with the Queensland Government estimating that the mine will have a lifespan between 25 to 60 years. Although the final figure is contingent on the mine’s lifespan, Adani has calculated that the development will contribute $16.5 billion to the Australian economy based on current coal prices. The project also includes the construction of a new railway linking it to the Abbot Point coal terminal, which has received approval from the State and Federal governments for expansion. The proposals indicate that enough coal will be exported from Abbott Point to generate electricity for 100 million people in India and create about 1464 jobs in Australia.

In the face of these economic incentives, there has been considerable community backlash from a wide cross-section of society opposed to the Adani development on various cultural, economic, and environmental grounds. Traditional custodians, the Wangan and Jagalingou people, have pursued various legal options to prevent the mine from going ahead, as native title claimants. There are also those who are against the development on the basis that they fear damage to the Great Barrier Reef, and the Queensland tourism industry and others who have raised concerns about the climate change impacts the coalmine will contribute.

Like all mining projects, the Carmichael mine has been subjected to the relevant approval processes at State and Federal levels in order for the development to proceed. However, unlike other mining developments, this proposal has received an unusual amount of assistance from Federal and State governments in the form of proposed new legislation, unprecedented mining approval conditions and potential loans of public money.

The Queensland Labor government, led by Annastacia Palaszczuk, announced in October 2016 that the mine will be granted ‘critical infrastructure’ status which will speed up the approvals process and will also mean that decisions made by the Coordinator General in relation to the mine cannot be challenged in court. On the Queensland Government website, the meaning of critical infrastructure is explained as, ‘[t]he infrastructure that provides goods and services essential to our State's economic and community wellbeing is broadly referred to as critical infrastructure.’ The website also provides examples as to the situations where critical infrastructure will be needed, such as when, ‘[t]he interruption or cessation of electricity or water services…profoundly impairs our ability to maintain our way of life and can cause significant economic loss.’

At the announcement of the new status, State Development Minister Dr Anthony Lynham said, “This Government is serious about having the Adani mine in operation, we want this to happen.” The Adani mine is the first commercial project to be determined critical infrastructure.

In early April, the Queensland Government granted Adani unlimited access to groundwater from the Great Artesian Basin until 2077. This licence will not be subject to the new Water Act Referral Panel created to ensure ‘the sustainable management of water in Queensland.’ In March 2017, 87 per cent of Queensland was declared drought-affected, the highest that has ever been recorded.

There have a number of cases challenging the decision of the Federal Environment Minister Greg Hunt’s decision to approve Adani’s mine. The Mackay Conservation Group successfully argued in the Federal Court that the minister had failed to consider the impacts on two listed threatened species, the ornamental snake and the yakka skink. The initial approval was set aside and Greg Hunt went on to re-approve the mine in a second decision, taking these factors into account.

As a previous proponent of a environmental reform to amend legal standing, Attorney-General George Brandis has said green groups, “have no legitimate interest other than to prosecute a political vendetta against development and bring massive developments … to a standstill.”

In a matter heard in the Land Court of Queensland, Coast and Country Inc, a community group who is concerned with the protection of central Queensland, objected to the grant of a mining lease for the Adani mine on the basis of groundwater, climate, ecological and economic impacts. In this case, the court found that only 1,464 net new jobs would be created, exploding Adani’s claims that there would be 10,000.

In a private meeting on 11th April 2017 in New Dehli, Malcolm Turnbull said to senior Adani executives that in regards to the threat of native title claims and the Carmichael mine “the issue needs to be fixed and will be fixed” by introducing a new bill to amend current Native Title laws.

Turnbull has also indicated that he would like revive the attempt to amend environmental laws which would prohibit environmental groups from challenging Federal decisions on major projects, which would include mining developments. Section 487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) allows individuals and groups to challenge ministerial decisions where they have engaged in activities in the last two years for the ‘protection or conservation of, or research into, the environment.’ The removal of such a section would most likely prevent the majority of conservation groups from having the capacity to seek judicial review of ministerial decisions.

In 2015, Prime Minister Malcolm Turnbull delivered a speech at the Sydney Institute titled ‘Magna Carta and the Rule of Law in the Digital Age’ where he explored the continuing importance of the rule of law in modern-day democracies. Turnbull reflected on his party’s own relationship to the rule of law and legislative change:

            Respect for the rule of law is at the heart of what it means be a conservative. As part of this doctrine, the rule of law imposes on legislators and judges a conservative caution when making new laws – the idea that, in general, new laws to quote [High Court Judge, the Hon Justice] Dyson Heydon, ‘should only be changed by a process of gradual development, not by violent new advances or retreats or revolution or ruptures.”

Our democracy developed out of the English common law tradition and inherited the notion the rule of law as a fundamental principle. At the 2015 Sydney Institute speech, Turnbull also observed:

            The genius of a liberal democracy is that at the same time it empowers the majority, through the ballot box, it also constrains that majority, or its government, through the rule of law. Some people imagine that a democracy is simply a society where the majority of the people get to decide who runs the country. But a society where a majority can do whatever it likes is not a democracy - it is a tyranny.”

As individuals and communities and NGOs have asserted their democratic right to protect the environment and stop the damaging Adani project, the Prime Minster’s concluding words of his speech at the Sydney Institute on the warning signs of a democracy in poor health are instructive. He said: “We should always shudder a little, perhaps a lot, when cynics sneer at courts and laws as just troublesome obstacles standing in the way of justice.” 

 

The author, Michaela Vaughan, is the AHRCentre student intern for semester one, 2017. Read other articles from The Student Voice, or find out more about our internships.