‘Lawfare’ – the abuse of the legal system by saving-the-planet economic saboteurs aimed at blocking, delaying, frustrating, discouraging and adding massive costs to the extractive industries that underpin Australia’s prosperity – has just been given a massive boost by an extraordinary split 2-to-1 decision by the Federal Court.

In allowing an appeal by traditional owners against the National Native Title Tribunal’s decision to finally approve Santos’ decade-long struggle to extract urgently needed gas from its $3.6 billion Narrabri project, the Court ruled, for the first time, that climate change must be taken into account as part of the ‘public interest’ test before the Tribunal could allow a project to proceed on native title land. The appeal succeeded because the Tribunal did not do so, having rejected the proffered expert climate opinion on the grounds that this issue had been adequately covered by the appropriate authorities in the approval process – and in an (unsuccessful) appeal in the NSW Land and Environment Court.

The (unintended?) consequence of this dangerous judgment will inevitably be that climate activists who have run out of options through the normal jurisdictions will turn increasingly as a last resort to misuse the Native Title Act’s newly installed environment requirements (courtesy of the Federal Court). This will avoid the need, when dishonourably using this Act (as in the recent Barossa pipeline fiasco), to find a traditional Aboriginal issue to cover what is really an environmental cause.

Naturally the green-left is ecstatic. The Federal Court’s decision is, ‘a massive precedent and a beacon of hope for future appeals’ said Greens politician Sue Higginson, in a clear warning to industry of the lawfare on the way. ‘A huge win for the environment and the planet. It really is a catalyst.’ She didn’t mention the native title holders who are the supposed beneficiaries. And in a recent issue of the Conversation, two Melbourne academics stressed the significance of the judgment that ‘puts native title holders in a stronger position when fighting to prevent future fossil fuel projects’. Remote Aboriginal communities should expect to be on the receiving end of approaches to front as anti-development climate activists.

So environmental litigation through the Native Title Act is certain to receive a judicially inspired boost, adding to Australia’s reputation (unfavourable in terms of sovereign risk by foreign investors) of being the jurisdiction with the second-highest number of climate litigation cases worldwide.’

In March’s Federal Court decision, Chief Justice Debra Mortimer was highly critical of the reasoning behind the approval decision by then Tribunal president (and retired fellow Federal Court judge) John Dowsett, indicating significant ideological, as well as legal, interpretation differences between the two. And accusing him of showing ‘impermissible deference’ to the New South Wales state government, by his insistence that the environmental assessments involved in the IPC and Land and Environment Court’s approvals of the project provided appropriate input and it would be inappropriate to ‘second guess’ such bodies.

Nevertheless, Mortimer did accept that ‘there is no doubt that the Tribunal was correct to see the 1998 amendments [to the Native Title Act] as removing the significant environmental assessment function to State environmental assessment bodies’. ‘It was also correct to view its statutory task as not being to “second guess” or re-do those environmental assessments’. But the Tribunal erred, she ‘respectfully’ opined, in conflating the removal of this environmental assessment function, with the removal of any requirement for it to consider, under its public interest obligation, relevant environmental issues. This view, central to the Court’s controversial stance, is, on the face of it, at odds with the Act’s explanatory memorandum which states that the Tribunal would only retain its ability to consider ‘particular environmental concerns’ because of their ‘particular effect on native title’ – clearly ruling out the sort of general climate change concerns that the Tribunal (properly?) rejected – but which resulted in its determination being overturned. As Dowsett asserted in his 2022 decision: ‘Whilst there is a public interest in climate change, the intentions underlying the 1998 amendments are clear.’

So the basis of this controversial judgment rests on the majority’s highly contestable claim that despite the 1998 removal from the relevant Act of the requirement for the Tribunal to take environment into account, the legislation’s use of the words ‘public interest’ has such a very broad meaning (rather than the specific meaning indicated by the context) that they assert it covers the environment. And the court has conflated the statutory requirement to consider whether a project is in the public interest (i.e. of benefit) or simply of public interest (as in the general issue of climate change).

Justice Mortimer left no doubts about her views, asserting that, ‘A matter of public interest in connection with the Narrabri gas project was the fact (for it was not disputable) that the project would generate substantial GHG emissions, in an undisputed factual context of the connection between GHG emissions and global warming, with the increased harm to people and the environment that comes from global warming…the Tribunal’s erroneous understanding of its task… led it to dismiss Professor William Steffen’s expert opinion in the case as that of just one scientist. Professor Steffen was expressing opinions that were on their face entirely consistent with the panel of expert authorities of the (IPCC), representing a collection of the world’s leading climate scientists.’

Dowsett also expressed his contrary views with vigour, saying that in this case he had been asked to ‘make a fresh and independent decision’. This, he says, was ‘in effect asking that I review evidence underpinning the decision of the Independent Planning Commission, and then adopt the evidence of Professor Steffen. It is difficult to see any justification for the contention that I should simply disregard processes to which the Narrabri Gas Project has been subject, at both state and federal levels, particularly having regard to Parliament’s view as set out in the explanatory memorandum concerning the 1998 Act. It would be a big step to set aside the outcome of such statutory processes in order to adopt the views of an individual scientist, or even the views of international agencies having no particular standing in Australia or in New South Wales. Steffen’s “the science is absolutely clear”, impliedly suggesting that the Commission had chosen to ignore the “absolutely clear” science. The conclusions reached by a statutory body such as the Independent Planning Commission cannot be simply dismissed upon the basis of an assertion by one scientist and sources upon which he or she has chosen to rely. It is unlikely that this Tribunal could perform that function, or was ever intended to do so.’

Dowsett added there was no identified ‘particular environmental concern’ having ‘particular effect’ on native title, within  concern about worldwide climate change, predicted to affect a large part of eastern Australia. ‘These are world-wide concerns, to be resolved by governments.’

Dowsett’s real ‘problem’ seems to have been his underlying view that democratic parliaments, not courts of law, are the appropriate locations for resolving environmental issues. ‘It is for our political leaders to decide how best to approach efforts to reduce greenhouse gas emissions as part of a broader fossil fuel phaseout needed to combat climate change’.

What governments, state and federal,  determine is clearly no match for judges with a mission to save the planet.