Environmental Approvals in Australia

After the Adani’s Carmichael coalmine approval by the government was overturned by the federal court ,the Australian environment approval system is in the radar.

An analysis shows that the Australian Environment Protection and Biodiversity Conservation since 2000 has been giving 96.2% of the projects approvals with conditions, 1.6% of the projects approved without conditions and 2.2% rejected.

Following the Carmichael case, the Australian government is making a move to repeal section 487 of the Environment Protection and Biodiversity Conservation Act.

Currently standing is provided for under s 487, which allows for legal action by a “person aggrieved by the decision” and extends the definition of this term to include individuals or organisations that have engaged in “a series of activities related to the protection or conservation of, or research into, the environment” within the two years preceding the decision. It is this extended definition that allowed the Mackay Conservation Group to initiate legal action against the Adani mine and that our government intends to amend.

If this proposed amendment passes, the scope for public interest litigation in defence of the environment will be seriously curtailed in Australia. Furthermore, this restrictive approach would also curtail the rule of law. The Adani case was settled after Hunt conceded he had failed to abide by the law in granting the approval – that is, he rushed it. The judgement merely requires the government to abide by its own laws. Hunt is free to re-approve the mine within weeks.

More on how this proposed change would affect the people :- http://www.theguardian.com/australia-news/2015/aug/19/farm-groups-fear-coalition-move-to-restrict-environment-challenges

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@krithikadinesh. Thank you for posting this.

In India the idea of who is an aggrieved person in environmental matters has been debated a lot in the erstwhile environmental appellate and now the National Green Tribunal (NGT). The NGT had in 2011 concluded that “The person aggrieved in environmental matters must be given a liberal construction and needs to be flexible.” There was a lot of discussion before the Tribunal on whether in the environmental matters, only a person who is really aggrieved/ injured should be allowed to pursue a legal remedy? However, it was concluded that “any person whether he is a resident of that particular area or not whether he is aggrieved and/or injured or not, can approach this Tribunal.” The full judgment can be accessed here: http://indiankanoon.org/doc/100369532/.

I would be keen to understand what is the situation other countries. best wishes Kanchi

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Here is another instance where the decision of the Australian government to limit the scope of legal challenges might have a bearing. An article in the Gaurdian reports: “The Upper Mooki Landcare group has challenged the approval given to the Shenhua Watermark mine project, specifically whether the open-cut mine on the Liverpool Plains would place a viable population of koalas at risk of extinction.”

The article also says: “That decision saw the Abbott government announce amendments to the Environmental Protection and Biodiversity Conservation Act (EPBC), which seek to limit who can challenge large resource projects, with a view to reducing “green lawfare” by environmental groups. The amendment is now before a Senate committee.”

The full report can be seen here: http://www.theguardian.com/environment/2015/aug/31/shenhua-coalmine-faces-legal-challenge-over-risk-to-koala-population?CMP=share_btn_tw

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Who is an aggrieved person? - My colleagues, Shalom and Zembi, at Natural Justice Kenya shared their thoughts on the situation in Kenya. They mentioned that Article 30 of the Kenyan Constitution provides a wide interpretation - : “If a person alleges that a right to a clean and healthy environment…, is being or is likely to be, denied, violated, or threatened, the person may apply to a court for redress…” Further, the Constitution also provides a right to institute proceedings to enforce the Bill of Rights of Kenya. Proceedings may be “instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; © a person acting in the public interest; or (d) an association acting in the interest of one or more of its members.”

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