1. Third Party Appeals: Community participation and the public interest
NELA Conference
1 September 2017
Declan Doherty
Principal Solicitor
Environmental Defender’s Office WA

2. EDOWA – what we do
The Environmental Defender’s Office of Western Australia (EDOWA) is a not for profit community legal centre
Our work:
Litigation and legal advice on matters of public interest environmental law;
Community legal education;
Environmental policy and law reform;
Fundraising!

3. EDOs across Australia EDOWA founded in 1996
EDO in every State and Territory (except Victoria)
EDOs of Australia established in 1996
Independent but collaborate on issues of national significance (including law reform submissions)

4. Public Participation and Democracy
Public participation fundamental to a representative, democratic system of government
Environmental democracy requires active engagement of informed citizenry and public participation in environmental governance
Procedural rights [Aarhus Convention]:
Access to information
Public participation
Access to justice

5. What is the public interest?
EDO Test:
Issues that:
have significance beyond a material or financial interest of a particular individual or group;
involve a real threat to environment;
have the capacity to result in good environmental outcomes;
concern the manner in which the environment is regulated; and
raise matters regarding the interpretation and future administration of statutory provisions.

6. Public interest environmental litigation
“proceedings in a court or tribunal undertaken by a private individual or community group where the dominant purpose is not to protect or vindicate a private right or interest, but to benefit the environment” [McGrath]
Other public interests?
Development of a resource?
Taxes, royalties, jobs?
Competing arguments or “facets”

7. Public Interest Lawyering
“A public interest lawyer is interested in the client’s cause of action not the client’s cause”.
Ron Merkel QC

8. Some key elements of public interest environmental law (in some jurisdictions)
Right to access information
Right to have a say
Independent EIA
Right to bring civil proceedings (standing)
Available types of legal action:
Merits review
Judicial review
Civil enforcement
Specialised Court

9. Benefits of Public Interest Litigation – reducing risk
Achieves objects of environmental legislation
Sustainable development / environmental protection!
Transparency & community confidence in process
Maintains integrity & rigour of decision-making processes
Challenge unlawful decisions
Improved & rigorous decision making
Talking of both merits appeals and judicial review
Eg Adani
Opportunity to uphold the law in the event of government failure to act
Increases enforcement
Enhances transparency, integrity and rigour in decision-making
Public scrutiny
Promotes careful and accurate decisions
Prevents arbitrary, illegal and corrupt decisions
Increases public confidence and legitimacy
Influences and improves future decisions
Achieves better environmental outcomes
Improves consistency and quality of decision-making

10. Benefits of Public Interest Litigation – reducing risk
Enables public to act as ‘surrogate regulators’
Reduces risk of corruption and undue favouritism
“Community participation and consultation requirements also act as a counter balance to corrupt influences. The erosion of these requirements in the planning system reduces scrutiny of planning decisions…
The limited availability of third party appeal rights…means that an important check on executive government is absent…”
[NSW ICAC Report, Anti-corruption Safeguards and the NSW Planning System]

11. Benefits of Public Interest Litigation – reducing risk
Raise awareness of issue – focus public attention
Even unsuccessful litigation can lead to positive outcome
Eg law reform

12. Challenges / risks to public interest litigation
Standing
Most cases judicial review proceedings (esp WA)
Court discretion not to grant relief
Ability to make same decision again / proponent reapply (subject to s38(5j)
Evidence – civil enforcement (eg EPBC Act)
Access to justice (limited EDO capacity)
Cost
Big commitment

13. Challenges / risks cont’d
“There is a significant resource imbalance in the area of environmental assessment and…people other than developers…rarely have legal advice and representation. The imbalance is so severe as to call into question the possibility of obtaining community involvement…Examples were cited of …inquiries where developers represented throughout by counsel, solicitors and technical experts but objectors were without either legal or technical assistance. The result was not only to leave a sense of unfairness but to deprive the decision makers of proper assistance”
[Environmental Law Association (later NELA) symposium, 1981]
- McGrath

14. Suggestions for Reform
Greater public participation
In Part IV EIA process
Reconsider Appeals Convenor process?
Specialist environmental court vs SAT?
Judicial review options
Reform of standing requirements
Public inquiry

15. Thank you!
Photo Courtesy Cara Ratajczak
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