Environmentalists in deep water

There are points in environmental conflicts when combatants need to change tack in order to salvage their campaign and public respect. The Blue Wedges Coalition, the chief opponent of the Channel Deepening Project, has reached one of those points.

The Blue Wedges Coalition should consider discontinuing its Federal Court challenge against Minister Garrett and, if it wishes to maintain its opposition to the project, relocate the fight to the political arena where it has successfully delayed the project, frustrated the Port, and tightened the environmental controls for dredging. If the members of the Coalition persist with their current legal challenge they may be demoralised by a harsh loss and face a struggle to pay a large legal bill. They may also cause the national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, to be clarified in ways that may harm the prospects of success of other environmental campaigns. The lawyers for the opponents of the Tasmanian pulp mill might find their challenge to Malcolm Turnbull’s approval of the Gunns’s project a bit harder to sustain after the Blue Wedges Coalition is done in the Federal Court.

Anyone who sat through the first day of the Federal Court hearing would have left with a sense that the legal case as it was put was unlikely to be won by the dredging opponents. Despite pleas from an obliging judge renowned for his helpfulness to struggling litigants to give him something he could work with, and heavy hints at proper causes of action, the case put, changed, reformed, and then changed again by the Blue Wedges was largely not well received. The judge made clear that he will not, as the dredging opponents at times appeared to be asking, invent a new ground of judicial review or delve into a review of the merits of the project approval, to overturn Minister Garrett’s decision.

The Blue Wedges Coalition has until 3 March 2008 to try again. Undoubtedly the next attempt will be better. However, it will be a grand effort to quickly salvage a case from the shreds left by Justice North.

The Blue Wedges Coalition has not found the courts to be a happy place. The Coalition and its members have been to State and Federal courts three times before and they have lost each time. Its existence has not been one marked solely by failure, however. In 2004, when I was a part of the legal team representing the Port of Melbourne Corporation in the first EES panel, the Blue Wedges, along with a couple of commercial objectors, exposed weaknesses and unanswered questions in the assessment of the Channel Deepening Project. Of course, in 2004 Bracks was Premier and the need to finish the project before the Commonwealth Games (remember them?) was of utmost priority. Times have changed. The State and the Port are now talking in unison. They are even jointly represented in court. Premier Brumby speaks like a man adamant that the project will proceed and be completed well before the next election.

Despite a good dose of generous media coverage and a determined approach, the Blue Wedges Coalition is at a turning point. It could disintegrate and lose the goodwill of many Melburnians and Victorians. Indeed, there is a sense that perhaps it is testing the limits of its support with the wider community with another foray into the courts (mind you, if the threats about pursuing compensation are pursued this might not be the last time Coalition members are at cross benches with the Port). Community support is vital, though, in the political battle that will continue, potentially up until the next Victorian election. If the Blue Wedges Coalition is to be engaged in that battle it must reconsider its dealings with the courts now.