Lawfare, Standing and Environmental Discourse: A Phronetic Analysis

The Adani Carmichael Coal Mine in the Galilee Basin of Queensland is one of the largest open cut coalmine proposals in the world. The development approval process for the mine has been deeply contentious, with opposition raised by environmental, farming and indigenous groups. Federal government approval of the mine has been successfully challenged in the Federal Court through judicial review. This led to a reconsideration and subsequent re-approval of the project, combined with the Federal Government proposing statutory changes to standing rules to restrict the capacity of civil society groups to bring judicial review actions. Given the broad standing provisions for judicial review that have been present in the Environment Protection and Biodiversity Conservation Act (Cth) (‘EPBC Act’) since its inception in 1999, what are the reasons behind this proposal for significant change in Australian environmental law? Drawing on phronetic legal enquiry methodology, this article provides a case study of the ways in which societal discourses intersect with law and political economy in shaping the ability of civil society to challenge the approval processes for major resource projects. This case study shows that the Federal Government’s agenda to reduce standing under the EPBC Act represents a decisive attempt to assert power and control by reducing the capacity of dissentients to oppose economic development. In doing so, this case study highlights the value of phronetic legal inquiry as methodology for analysing processes of change, and attempted change, in law.