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2 Birds, 1 Mine: Environmental Citizens

Harry Douglas


"We need to find our own way to speak up against what can only be described as the inevitable destruction of our environment ... Mailing crocheted dead birds to politicians doesn’t seem so absurd anymore."

In an attempt to stop Adani, artists of The Black Finch Project have mailed over one thousand depictions of dead finches to politicians. The endangered black-throated finch was recently at the centre of yet another attempt at preventing, or at least delaying, the development of the Adani Carmichael coal mine in the Galilee basin. Charlotte Watson, the artist behind the Black Finch Project, aimed to ‘make known the lives of these creatures. No text. No slogans. No message of rage. Just dead finches’.[1]


The Black-Throated Finch Management Plan was signed off on at the end of May. According to CEO of Adani Mining, Lucas Dow, the approval was an ‘important step’ subject to ‘rigorous scientific evaluation’.[2] Although home to the largest population of the finch, the site of the forthcoming mine has already seen an 80% decrease in the habitat range of the bird. While there are still some steps remaining in the Adani approval process, these appear only to be regulatory, as politicians are pushing for the development about as hard as the mining company itself.


So, is there anything we can do? Certainly, the Black Finch Project has gained enough media traction to alert the attention of the public and maybe even a couple of sympathetic politicians. However, the level of support for the Adani project suggests this will likely be just another splash in the pond.



Legally, the enactment of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) introduced the potential of third-parties bringing judicial review claims – which is currently seen to be the most effective method of changing the course of the law. To bring such a claim, the person must meet a standard which is slightly less stringent than the administrative standard of ‘person aggrieved’. However this is subject to the individual having worked in activities related to the environment for at least two years prior and can prove they were directly affected by a decision, failure, or conduct for the purpose of making a decision.[3] Between 2000 and 2015, approximately 0.43% of projects referred to the minister were subject to third party judicial review challenges.[4] And with only roughly 100 ‘Environmental Citizen Suits being brought to the Federal Court by private citizens for ‘public environmental benefits’ since 2000, we are surely seeing a structural block on environmental citizens. Justice Pepper of the NSW Land and Environment Court argues that the limitations are institutionally imposed by Parliament in order to safeguard government action from judicial scrutiny, which, along with the financial and emotional costs of litigation, results in citizens asking, ‘is it worth it?’[5]


In a context where environmental court judges themselves lack faith in the rule of law being applied, and realistically there is a very low chance of environmental citizen suits being successful in litigation. In our legal system, the judiciary’s powers of review are constitutionally enshrined for those moments when governments act contrary to the will, or wellbeing, of the public. Here, the courts’ powers of review have been covertly restricted, suggesting we need to find our own way to speak up against what can only be described as the inevitable destruction of our environment. In this sense, mailing crocheted dead birds to politicians doesn’t seem so absurd anymore.


References

[1]Charlotte Watson, @cwatson_studio Instagram post; https://www.instagram.com/p/ByHv3cbgDVH/

[2]Lisa Cox, ‘Queensland signs off Adani’s plan for endangered black-throated finch’, The Guardian.

[3]s 487, EPBC Act

[4]Macintosh, Roberts and Constable: ‘An empirical evaluation of environmental citizen suits under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’

[5]Justice Rachel Pepper: ‘Judicial Review is Dead. Long Live Judicial Review!’ (2018)

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