Indigenous rights abused in ‘lawfare’ against Santos
Litigation risks are rising at billion dollar projects across the country, while an unfair burden falls on indigenous communities.
This week’s judgement opposing the litigation brought against Santos’ Barossa project re-enforces the worst fears many have about activist “law-fare” being imported into Australia.
While Santos prevailed at this hurdle, much damage has already been done, and similar litigation risks are rising at billion dollar projects across the country.
The judgement appears scathing of the motives of those funding the litigation, and the merits of their claim. At its essence, it can appear more extreme environmental activists are co-opting Indigenous rights in order to pursue an ideological anti-fossil fuel agenda. It is damaging Australia’s economy, putting tens of thousands of Australian jobs and workers’ safety at risk, creating logjams for government regulators, and harming Australia’s reputation for investment.
Fair questions are now being asked about the motivations and backers of the Environmental Defenders Office (EDO), and what advice and incentives their claimant’s may be receiving.
The blame for this damage doesn’t fundamentally lie with the environmental groups, like the EDO, who are entitled to take advantage of Australia’s vague regulations to pursue their agenda. That’s every Australian’s legal right.
It lies with a government which is dragging its feet on a simple legislative fix that is well overdue. Indeed, the federal Labor government is instead funding these very activists’ litigation against their own regulator. This is occurring for no comprehensible reason other than they don’t see the economy as a priority, or feel the need to pander to green elements of the political spectrum.
It is widely understood the indigenous consultation regulations have become unworkable. It is allowing a single indigenous individual, who can be hundreds of kilometres away, to halt a major project on grounds they haven’t been consulted adequately about it. This is so even if they deliberately made themselves unavailable to consult with, and even if the indigenous body that would ordinarily represent them had been consulted with.
The activists are very well funded and sophisticated, and are orchestrating their procedural litigation in order to do the most damage to gas projects. By targeting small numbers of indigenous Australians to make legal claims against the regulator, they can take advantage of an unintended legal loophole to stop billions of dollars in investment in its tracks. This is stopping multi-billion dollar projects halfway through construction via endless procedural challenges.
Gas companies are now having to approach indigenous communities across hundreds of kilometres of coastline for consultation. Even non-Australian’s in neighbouring countries can now stop investment in Australia this way. It is already costing hundreds of millions and counting, risking billions of dollars in investment, and damaging Australia’s reputation, all for no benefit. It is proving a burden on indigenous communities who are suffering consultation fatigue, as they are repeatedly approached about developments far away from them that they don’t have a care for. It is also raising the risk of an environmental disaster as decommissioning of old projects has been halted too. And it is putting Australian workers needlessly at risk, who are being stranded offshore in hazardous conditions, only to have to turn back due to another last minute procedural challenge by activists.
It is clear the legal challenges are fundamentally not about indigenous heritage issues. Rather, it appears an avenue for green activist groups to take advantage of indigenous rights in pursuit of an extreme environmental agenda that seeks to shut down Australia’s fossil fuel industry. There have been countless projects built over the years that have never raised these indigenous issues until activist green litigation tactics came to Australia’s shores.
The consultation regulations were never intended to be used like this. They were always understood to be limited to recognised indigenous bodies in close proximity to the project and to be of a consultative nature; not to provide effective vetos to thousands of Australians hundreds of kilometres away.
Indigenous consultation remains very important, of course. No-one is suggesting otherwise. Australia’s gas industry takes its indigenous relationships far more seriously than almost any other industry.
But that’s not what this really is about. The unworkable consultation requirements now present the single largest existential threat to Australia’s entire LNG industry, and one of Australia’s largest export earners.
If not fixed, no less than tens of thousands of high paid jobs, tens of billions in tax revenue, and the health of the economy of Western Australia is at stake.
This is why pressure is mounting from industry and unions to clarify the regulations so they are simply workable, and less subject to activist litigation. So a government approval actually means something.
Australia’s relationship with trading partners and allies will be left in tatters if their investments in, and contracts for, Australian LNG projects is materially further delayed because of this issue. Australia’s word that something is approved is losing its worth. A reputation as a reliable trade partner, that took decades to earn, is being lost.
Ordinarily, the federal government would quickly and simply clarify the regulations to make them as intended and get the projects back to work. But the current government appears in no hurry.
It is clear the consultation requirements will have to be fixed eventually, as the consequences of not doing so will be too dire. So now it’s just a matter of how much economic and reputational damage is done, and how many jobs are lost, in the meantime while Labor drags its feet.
The government needs to decide if it supports Australia’s LNG projects — which they say they do — or if they do not. If Labor wishes to stop Australia’s LNG projects for environmental reasons, that is a policy position they should present to Australia face on. Not via the back door through allowing and supporting activist litigation against their own project approvals. The public, workers, unions and businesses who will be left desolate deserve to know where their livelihoods stand.
Saul Kavonic is Head of Energy Research at MST Marquee.