Drought, deaths and prayers. Won’t someone think of the Australian farmer.


This is an edited version of a presentation I gave to the Journal of Environmental Law ‘Environmental Law and Populism’ Workshop held at The University of Oxford in November 2019.


My geographical focus today will be the Murray Darling Basin, a geography that encapsulates five sub national jurisdictions and is co-managed under referred legislative powers by the Commonwealth government and state and territory governments under the Water Act 2007 (Cth) (‘Water Act’) and the Murray Darling Basin Plan.

I am going to talk to you about the rise of a populist discourse in Australia centred on the interests of the farmer. It is a discourse that has become especially evident over the past 12 months following fish deaths in the Darling River in New South Wales (‘NSW’) and the political declaration of drought in the eastern Australian states. It is grounded in rural unrest about the allocation of water rights, and has been deployed to resist legislative or political action to address the climate catastrophe enveloping Australia. And so for these reasons, I view the ‘farmer interests’ discourse as an environmental discourse.

What I hope to highlight is that the problems that fomented the discourse (especially climate change and water mismanagement) are not those problems being addressed by the laws that are being supported by the discourse. At least for the time-being.

The discourse is present in news media, notably the Australian tabloid press and the mostly Sydney-based right-wing radio stations, in posturing by politicians within and outside of parliaments, and it has more recently been mocked and satirised on social media through the use of memes.

The environmental discourse has been used to achieve a political response this year, especially in the form of drought relief for farmers – a controversial policy because many of the farmers receiving assistance to keep them farming face a reality of prolonged dry periods and some within the industry[1] are arguing that the time is right for some farmers to transition off barren lands.

The discourse has been used to support legal changes in 2019 – including in NSW: laws that diminish native vegetation controls, that alter the law of nuisance for agricultural production and that further criminalise on-farm protests by animal rights activists, and federally in the attempts to regulate milk prices by the fringe and conservative populist party: Pauline Hanson’s One Nation Party.

What is an environmental discourse and how is it relevant to populism?

My understanding of what environmental discourses are is informed by the 1990s scholarship of Hajer[2] and Dryzek.[3] Environmental discourses are a ‘shared way of apprehending the world’[4] or an ‘ensemble of ideas, concepts, and categorizations’ which are given meaning through their reproduction and repetition and the political ecology within which they are struck.[5] They bring together adherents, into discourse coalitions, in order for them to interpret information and stories about the environment.[6] Although the discourses and their coalitions of supporters shed or disguise complexity[7] and are oftentimes lacking in coherence.[8]

Discourses comprise ‘vocabularies of motive’,[9] language, metaphors, analogies, clichés, catch phrases, and concepts and structures of bias. They are condensed into often simple, succinct, and agreeable storylines within which actors are able to attach their disparate views, values, and interests.[10] They become ‘world views’, emblematic and ritualised and infiltrate common language in a way that shape and highlight particular knowledge.[11]

Elsewhere Chris Hilson has written of the presence and role of narrative in climate litigation in engendering a populist frame and movement,[12] and he has contrasted the presence of narrative, storylines and discourses within environmental jurisprudence and law making, and encouraged viewing these prisms of language and positionality as drivers for legal action and involvement.

What’s more, as Hilson writes in preparation for this workshop, ‘populism appeals to emotions over rationality’ and this emotion is often wrapped up in narratives of experiences and feelings.[13] There is within populist movements, says Hilson, an appeal to the ‘will of the “real people’ and as Fisher notes a ‘telling of simple stories’:[14] especially of ‘the people against the elite, and [of] the “real” people’: like Australia’s farmers: sometimes referred to as the ‘real Australians’, including by Australian politicians.[15] Preston similarly writes of sloganeering and propagandising driving policy and politics.[16] I hope to colour these perspectives today.

The fish kills

As I have noted, I am interested in the rise and power over law and policy of the ‘farmer interests’ environmental discourse. In the context of the recent Australian popular interest in the wellbeing of the bush, and the re-energisation of populist political parties I trace the farmer interest discourse to the widespread community shock about the fish kills – an environmental catastrophe – in the Darling River around Menindee from 11 months ago.

Of course, there is a strong poetic narrative, dating to colonial times, of Australian ‘bushmen’ and farmers being central to the Australian identity.[17] And while that narrative certainly helped consolidate the discourse, other events have shaped the discourse for present social media times.

A video in the aftermath of the first fish kill in December 2018 (featuring a farmer holding a dead Murray cod who had previously brought a High Court challenge over the diminution of his business’s water rights)[18] went viral[19] triggering much political anxiety. Both the federal government and, unconventionally, the federal opposition initiated inquiries into the cause of the deaths to both qualm and exploit the community shock and anger.[20]

Scientists identified mismanagement of water allocations, including over-allocation to high water users, and low environmental flows arising from the NSW government policies of water release as the primary causes.[21] An earlier corruption scandal, leading to a Royal Commission by the state of South Australia, was the result of water users in NSW taking greater volumes of water than they were allocated or that they were entitled having earlier benefited financially from claiming water use efficiency dividends. All of this occurred according to the terms of the federalist Murray Darling Basin Plan under the watch of the NSW government, meaning that environmental and downstream flows were reduced.[22]

And then there was the contribution of a changed climate, exceptionally wet then dry and hot weather conditions; with the government’s investigators explaining that ‘climate change amplified these conditions and will likely result in more severe droughts in the future’ and with it more fish kills.[23]

The NSW government saw the effect of the community anger over its role in water mismanagement in the electorates that contain the Darling River and adjacent rural centres in the March 2019 state election, with populist parties, most notably the Shooters, Fishers and Farmers Party with its policy platform of reform to water law and policy,[24] and independents, recording large swings to them as voters deserted the rural conservative National Party.

The drought

The federal government, despite avoiding the same electoral damage as its NSW conservative counterparts and being returned to power thanks it claims to the votes of the ‘quiet Australians’ has, however, experienced community anger as drought conditions have worsened in NSW in particular, and it has refused to revisit its market-based water policy.

Communities further downstream in the Murray Darling Basin have been agitating for some of the dedicated environmental flows under the water plan and Water Act to be reallocated to agricultural purposes, and for a reallocation of water from high use, high profit, principally export cropping – think cotton and almonds for instance, to a larger number of farmer interests, particularly those who are a part of the local food supply system, and to dairy farmers.[25]

The federal minister, David Littleproud, whose extended family was implicated in water allocation manipulation,[26] has borne the brunt of farmer and rural constituency wrath[27] for the government’s inaction.

The national discourse

The broader and generally urban community, supported by commercial media, especially talk back radio and breakfast television, and supermarket chains, has organised a charitable response. Australians have been urged to buy bales of hay for farmers (that was on my opening slide), to donate dollars at the supermarket till, to adopt a farmer. Governments are claiming to be thrifty with spending and focussed with government policy such that immediate farmer interests are prioritised – in terms of social welfare and drought policy.[28]

And such commentary has been mimicked on social media.[29] The Australian farmer has become the cause of populism to such an extent that it is now being mocked through memes on social media.

Among other figures of mockery has been the Prime Minister whose government has resisted calls for policy or legal responses to address the causes of the experience of drought – climate change and water allocations. Turning to prayer and government financial assistance; assistance characterised as too little by the populist class.[30] Yet to challenge the discourse – especially to raise climate change as part of the problem is to be dismissed as taking advantage of the predicament faced by Australian farmers; and to be identified as no longer one of the government’s preferred obedient quiet Australians.

While laws to address the core challenges faced by those on the farmlands have not (yet, perhaps) eventuated from the farmer interest discourse, other laws and legal manoeuvres have arisen from the discourse, perhaps opportunistically or by design. I want to note three legal changes where the discourse was deployed in the speeches and commentary supporting the proposed legislation.

The Native Vegetation Act amnesty

First, in the decision of the NSW government to direct its Department of Planning, Industry and Environment which regulates native vegetation protection to cease its investigation, penalisation and prosecution of suspected unlawful land clearing undertaking under laws that the NSW parliament repealed in 2017 – the Native Vegetation Act 2003 – and which it replaced with a more permissive and self-regulated system of native vegetation management on private lands. The Department is now required to work with landholders to achieve compliance with Codes.

The Minister responsible for agriculture,[31] not the Minister responsible for the environment, explained his government’s decision to a NSW farmers conference:

“I don’t want to see farmers who undertook activity, which if they did it today it would be completely legal, prosecuted for activity that they did 10 years ago that might’ve been illegal at the time”.

Yet it has since been reported that many of the investigated parties were not farmers as imagined or recalled – dust covered and Akubra hat wearing; rather large industrial cotton agribusinesses.[32] The distinction, however, was not drawn out in the populist demands for the change led by the Sydney radio station 2GB.[33]

Radio personality Ben Fordham campaigned for this legal-policy change under a promise of fighting for Aussie farmers facing “bankruptcy”[34] from action by government ‘bullies’ and from “being forced off their land because of the aggressive tactics” of the Department.[35] Farmers, already doing it hard, weren’t getting a fair go. Lost in the hyperbole of concern and victim making was an acknowledgement that a native vegetation officer was shot dead five years ago doing his job enforcing these laws.[36]

The Right to Farm Bill 2019 (NSW)

Which is awaiting royal assent having passed both houses of the NSW parliament, is the second and most notable legal change supported by the farmer interests discourse this year.

The Act achieves two primary but disconnected goals. First, it creates higher penalties up to three years for trespass onto agricultural land (compared to other private lands) and creates new offences of organising – directing, inducing counselling – such trespass activities. These are legal changes directed towards animal rights protesters by the least quiet and most unAustralian of Australians at the moment – vegan extremists.

These laws add to other laws passed by the Commonwealth parliament this year that create crimes of using a carrier service to organise trespass or property damage on agricultural land.[37]

Second, it creates a defence to claims of private nuisance where what would otherwise be an ‘unreasonable interference’ has occurred on commercial agricultural land (or farm affiliated land – including land used for rodeos) consistent with other laws, primarily planning laws, for at least one year, and has not been undertaken negligently.[38] This is the second version of the US Right to Farm statute, following Tasmania in the 1990s.[39]

Adam Marshall, Minister for Agriculture and Western NSW in introducing the bill explained how tough our farmers are it doing in the face of drought,[40] and proclaimed that the bill:[41]

enshrine[d] in law a farmer’s right to farm their land, to grow the food and fibre to feed and clothe [us and would tackle] on-farm trespass … and the questioning by vegan vigilantes and other ideologically motivated groups of a farmer’s right to undertake lawful activities. 

The Protecting Australian Dairy Bill 2019

While defeated in the Senate by 30-31 votes this month, and which sought to include a base minimum price for milk for each dairy season, is worth noting because it showed the discourse on display and used against the government who continues to be a key figure in the discourse coalition[42] in an ongoing battle over milk pricing policy and the power imbalance between Australia’s supermarket duopoly and dairy farmers.

In introducing the bill and also in the media,[43] Pauline Hanson, populist Queensland Senator, pleaded for her proposed law to be passed for the people of the nation – embodied in the Australian dairy farmer:[44]

We have to stand up for all the dairy farmers. … I call on everyone in this parliament: represent the people of this nation—the dairy farmers, who are on their knees and going under. All they want is a fair price for their milk, and the public will pay for it.

The climate change activist farmers

I will finishing by mentioning that while this discourse has not been used to address the kinds of existential problems facing Australian farmers through law and policy, it has given a voice and power and space for discussion by farmers. And so it might present another avenue, perhaps more conciliatory, less disruptive or threatening to government to achieve legal and policy change of the sort required merely for Australia to fulfill its international targets and meet other nations in the challenge to avert a climate crisis.

The Guardian newspaper has a journalist producing regular stories about climate change from the bush framed through the experience of the farmer,[45] rural and agricultural policy think-tanks have raised concerns about government inaction on climate change[46] and the new grouping of Farmers for Climate Action, led in part by one of Australia’s most effective young climate activists and thinkers, Anna Rose, is reshaping the image of the modern and the future farmer and articulating their understanding of the climate policy needs required to keep them on the land and Australia the land of sweeping plains and bushwomen.

[1] The National Farmers Federation is urging exit packages: Ean Higgins, ‘Call for “exit packages” for drought-hit farmers’, 23 October 2019. The Australian. Editorial, ‘Structural solution to the farm “crisis”’, 24 October 2019. Australian Financial Review.

[2] Marteen Hajer, The Politics of Environmental Discourse: Ecological Modernization and the Policy Process (Oxford, 1995).

[3] John Dryzek, The Politics of the Earth: Environmental Discourses (Oxford, 1997).

[4] Dryzek, 8.

[5] Hajer, above n 2, 44.

[6] Dryzek, above n 3, 8.

[7] Hajer, above n 2, 45.

[8] Hajer, above n 2, 44.

[9] Ray Kemp, ‘Why not in my backyard? A radical interpretation of public opposition to the deep disposal of radioactive waste in the United Kingdom’ (1990) 22 Environment and Planning A 1239, 1244.

[10] Marteen Hajer, ‘Discourse coalitions and the institutionalization of practice: the case of acid rain in Britain’ in Frank Fischer and John Forester (eds), The Argumentative Turn in Policy Analysis and Planning. (Duke, 1993) 43.

[11] Hajer, above n 2.

[12] Chris Hilson, ‘Law, courts and populism: climate change litigation and the narrative turn’ Chapter 5 in  Susan M. Sterett and Lee D. Walker (eds), Research Handbook on Law and Courts (Edward Elgar, 2019).

[13] Chris Hilson, ‘Climate populism, courts and science’ (2019) 31 Journal and Environmental Law 395.

[14] Elizabeth Fisher, ‘Unearthing the relationship between environmental law and populism’ (2019) 31 Journal and Environmental Law 383.

[15] Christopher Mayes, ‘Cultivating a nation: Why the mythos of the Australian farmer is problematic‘ The Conversation, Littleproud meets with parched farmers hoping for rainCountryman, 28 March 2019. 

[16] Brian Preston, ‘The end of enlightened environmental law’ (2019) 31 Journal and Environmental Law 399.

[17] See the 1890s work of Bajo Patterson, for example. Mayes, above n 15.

[18] Arnold v Minister Administering the Water Management Act 2000 240 CLR 242.

[19] Paige Cockburn and Kevin Nguyen, ‘Mass fish deaths at Menindee sparks viral video as Minister receives threats’ ABC News, 

[20] See the letters to the editor, Sydney Morning Herald, 11 January 2019; Cameron Gooley, ‘Menindee rotting fish clean-up to begin next week‘ ABC News, 

[21] NSW Government, Department of Primary Industries, Fish Death Interim Investigation Report: Lower Darling River Fish Death Event, Menindee 2018/19 (January 2019); Australian Academy of Science Expert Panel, Investigation of the causes of mass fish kills in the Menindee Region NSW over the summer of 2018–2019 (2019)

[22] Anne Davies, ‘Damning Murray-Darling report says NSW ‘well behind’ on water-sharing plansThe Guardian, 15 January 2019; Bret Walker SC, Murray-Darling Basin Royal Commission Report (January 2019).

[23] https://theconversation.com/we-wrote-the-report-for-the-minister-on-fish-deaths-in-the-lower-darling-heres-why-it-could-happen-again-115063

[24] Shooters Fishers and Farmers Party (NSW), SFF strategy on Murray Darling Basin water management. The party’s principle environmental policy position is the rejection of protected areas for environmental preservation.

[25] Peter Hannam, ‘On their knees’: Drought and nuts blamed for ‘decimating’ food sector’ Sydney Morning Herald, 25 October 2019.

[26] Kerry Brewster, ‘One of Queensland’s largest irrigators expected to be charged with fraud The Guardian, 8 April 2018.

[27] Warwick Long, ‘Effigy of Federal Water Minister David Littleproud floats toward SA in Murray-Darling Basin Plan protestABC News, 20 September 2019.


[28] Peter Lewis, ‘There is growing empathy for those on Newstart. The dynamics of welfare politics are changingThe Guardian, 13 August 2019.

[29] Viki Gerova, ‘Thousands Sign Petition To Scrap Sydney’s NYE Fireworks And Donate Funds To Fire Relief10 Daily, 17 November 2019.

[30] Michelle Grattan, ‘View from The Hill: Alan Jones v Scott Morrison on the question of how you feed a cowThe Conversation, 15

[31] John Ellicott, ‘Marshall takes stick to old veg laws, reviews all old ordersThe Land, 1 August 2019.

[32] Anne Davies, ‘NSW farmers granted amnesty for illegal land-clearingThe Guardian, 1 August 2019.

[33] Davies, above n 32.

[34] 2GB, ‘Ben Fordham’s fight to save Aussie farmers from bankruptcy‘ 2GB, 21 May 2019.

[35] Anne Davies, ‘Farmers prosecuted for land clearing allege former NSW minister gave them green lightThe Guardian, 17 October 2019.

[36] Kathleen Ferguson and Jennifer Ingall, ‘Native Vegetation Act amnesty angers partner of slain environment officer Glen TurnerABC News, 2 August 2019.

[37] The Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth) creates offences of:

  • Using a carriage service for inciting property damage, or theft, on agricultural land; and
  • Using a carriage service for inciting trespass on agricultural land

[38] The ‘defence’ was originally drafted as:

No action lies in respect of nuisance by reason only of the carrying out of a commercial agricultural activity if:
(a) the activity is carried out lawfully, and
(b) the activity is not carried out negligently, and
(c) the activity is carried out on agricultural land, and
(d) the land on which the activity is carried out has been used for the purposes of agriculture for a period of at least 12 months.

It was amended at the initiation of the Shooters Fishers Farmers Party:

No action lies in respect of nuisance by reason only of the carrying out of any of the following activities if the activity is carried out lawfully and not negligently and that type of activity has been carried out on the land for at least 12 months:
(a) a commercial agricultural activity,
(b) an activity carried out for the purposes of any of the following:
(i) any business or undertaking in which cattle, poultry, pigs, goats, horses, sheep or other livestock are kept or bred for commercial purposes (for example, a dairy, saleyard or feedlot),
(ii) a business or undertaking for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wool of animals, including abattoirs, knackeries, tanneries, woolscours and rendering plants,
(iii) a business or undertaking for forestry (including timber mills) or aquaculture,
(iv) a show or competition involving livestock (including a rodeo).

[39] Primary Industry Activities Protection Act 1995 (Tas).

[40] Adam Marshall, NSW Legislative Assembly Hansard, 17 September 2019 (Second Reading Speech). The Minister noted:

Our farmers are doing it tough, as every member of this House knows, and the amendments to the Inclosed Lands Protection Act 1901 and the new Right to Farm Bill 2019 are part of a broader suite of initiatives by the Government. We all know how hard the drought is for all communities and farmers in rural, remote and regional New South Wales. That is why in July 2019 the Government announced an additional $1.1 billion in drought support. The acts of trespassers can undo the great work that our farmers do every day to protect and maintain the world-class biosecurity regime we have in New South Wales.

[41] Marshall, above n 40.

[42] Susan McDonald, Senate Hansard, 11 November 2019 (Second Reading Debate). National Party senator for Queensland,  McDonald claimed:

There is no more important industry in Australia than agriculture in growing the food and fibre that feeds the nation and feeds a good part of the world. Dairy is indeed an important part of that industry. They are doing it as tough as anybody at this moment—as tough as pork producers, as tough as feed lotters and as tough as anybody who is having to pay a dollar a kilo for feed, who are struggling to get water in the face of a deep drought. But these are not things that can or should be solved by this legislation.

[43] The New Daily, ‘Pauline Hanson weeps at plight of dairy farmersThe New Daily, 18 October 2019; Matt Coughlan and Daniel McCulloch, ‘Pauline Hanson can’t milk support for dairy billThe New Daily, 11 November 2019.

[44] Pauline Hanson, Senate Hansard, 11 November 2019 (Second Reading Speech).

[45] Gabrielle Chan, ‘For farmers climate change is the headline to our lives, but McCormack’s Nationals avert their gazeThe Guardian, 11 November 2019.

[46] Australian Farm Institute and Farmers for Climate Action, Change in the air: Defining the need for an Australian agricultural climate change strategy
(June 2019).

Clearing the Air: Australia, environmental justice and ‘toxic’ pollution

Here is a speech I gave at a public seminar hosted by Environmental Justice Australia on 8 July 2014 on the topic of air pollution and environmental injustice.


The focus of this evening’s seminar is the recently published ‘Clearing the Air’ report into air pollution by our hosts, Environmental Justice Australia.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

If you look at the origins of the Environment Protection Act 1970 (Vic), you will see a focus on human health concerns within the broader community.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

Why environmental justice matters

Here is a presentation I gave at the EDO/CREEL Environmental Justice Symposium:

I want to present two somewhat related thoughts to you today about why environmental justice matters.

The first thought is: that environmental justice matters because the concept of ecological sustainable development has failed – ESD has become a catch-phrase, has always lacked meaning, and certainly no longer prioritises environmental protection and conservation. The concept of ecological sustainable development is not used to improve the livelihood of the least advantaged among us. The ecological modernists, and even the ecological industrialists, have employed the notion to achieve their ends, be they environmentally benign or destructive. Moreover, a legal system designed around an environmental justice framework might have caused decision-makers and ourselves greater reason to doubt the appropriateness of government decisions made about the environment and development.

This thesis is demonstrated by three Australian case studies which are the subject of my current research and which explores the aspects of distribution, recognition, participation and capabilities that David Schlosberg has identified as being components of a multi-faceted, hybrid and plural notion of environmental justice.

It is demonstrated in a battle over a landfill in rural NSW where the law at first intervened to halt a project that would have cross-generational adverse impacts on the rural future of the people of the township of Molong, whose landscape would include the home of a landfill and recycling plant owned and operated by, and servicing the people of, the neighbouring city of Orange. Later, however, the law allowed the court’s concerns to be downplayed as the project was rebadged as one of the most sustainable waste projects of state importance. The landfill was approved. The community was left with no meaningful avenue to the courts to challenge a dubious legal conclusion reached by the NSW Minister for Planning.

It is also seen in the environmental assessment process, an archetype of sustainability law, for the Channel Deepening Project here in Victoria, and was especially evident in the process for the sugarloaf pipeline, where the environmental law failed to guarantee expected and typical rights to participate in the project evaluation process in a meaningful way, a process already designed to advantage industrialist proponents.

It was evident in the dispute over logging in Tasmania’s Wielangta forest, where the ‘ecologically sustainable’ Regional Forests Agreement – a model of sustainability policy – was found to allow the endangerment of species the RFA was supposed to conserve and protect. While the court at first instance concluded that the law required an assessment to be undertaken before any activity would further diminish threatened species populations and the species’ capacity to flourish, the executive governments of the Commonwealth and Tasmania devised a work-around to permit logging in the forest despite its adverse impacts on the ecosystem.

My second thought about why environmental justice matters is that a principle of environmental justice is an important moderator of some our collective environmental enthusiasm. It should make us think before, as a community, we are seduced by the promise of environmental benefits using relatively novel policy approaches.

Last month I returned from a half-year research stay in the San Francisco Bay Area where environmental justice issues are raised and pursued by a number of grass-roots non-profits whose focus is on improving the environmental health of California’s most disadvantaged communities. While often the environmental justice groups work alongside traditional environmental groups, they have recently lined up against them in court.

The issue that has demonstrated a disjuncture between community-focused environmental justice groups and mainstream state and national environmental groups has been the Californian Government’s decision to adopt a cap-and-trade mechanism to reduce its greenhouse gas emissions.

The environmental justice groups succeeded in court by arguing that the government had failed to follow the process required of it in law because it did not evaluate alternative options for reducing greenhouse gas emissions – particularly a carbon tax – or indeed regulatory limits on emissions. The environmental justice movement’s concerns about a cap-and-trade mechanism include that there is an ability under that system to offset emissions. This might lead to total emission reductions but will not have the associated benefit of reducing the local pollution in some of California’s most polluted areas. They argue that the only fair way to reduce greenhouse gas emissions is to reduce them at source, and at every source.

The policy setting has already led to the development or proposal of new, more efficient and sustainable gas fired power plants – a cluster of them (each power plant just coming under the human health emission limit triggers for assessment and mitigation requirements – collectively they are over the limits). They are being built or proposed around the poor township of Richmond, though much of the power will be used in San Francisco where polluting power plants were closed owing to the lobbying efforts there of a wealthier and empowered community.

A regional waste facility or a local tip out of place? A nomospheric investigation of power and legal categorisation

What follows is a text of a presentation given to the Annual Meeting of the American Association of Geographers in New York, 26 February 2012. A subsequent, much briefer piece, set in the context of impending changes to NSW’s planning laws, was published by The Conversation.



I want to speak to you about a landfill, composting and recycling facility that was proposed, assessed and – after legal and political twists and turns – was approved for development in the small town of Molong, located 4 hours drive west of Sydney. The proponent of the development was Orange City Council. Molong is about 25 kilometres beyond the boundary of the Orange City Council local government area.

With the benefit of David Delaney’s work on ‘nomoscapes’, I will look at how within the controversy over the Orange Waste Project law and place were connected. The geography was categorised by the law. The law specified that developments in New South Wales could be with respect to the ‘state’, could be ‘regional’ or ‘local’. Meanwhile, the law had to confront details about the agricultural quality of the land, the sense of place, the threat to amenity, and the importance of the rural landscape: all matters familiar to geographers.

What I hope to achieve is to not only introduce you to the project and the particularities of the nomospheric method I found most useful, but also to offer an analysis of the decision-making throughout the assessment process for the project, looking at the important local and regional dimensions and suggesting that in this instance the project was approved because one actor – the Minister for Planning – had unfettered power in and over the nomosphere: including power to define the nomosphere itself.

Nomospheric investigations

Delaney’s recent scholarly contribution argues that the places and environments that we inquire about can be understood further and differently by ‘thinking about the complex, shifting and always interpretable blendings of words, worlds and happenings … through which our lives are always unfolding’. Undertaking so-called ‘nomospheric investigations’ into events that encounter the law can offer more detailed and critical perspectives about the law and the world in which we live. Central to these investigations is a focus on ‘situations’, not on ‘cases’; on experiences, viewpoints and the dynamics of power, not so much on the legal outcome. Delaney makes the point that the lived experience of the law is frequently neglected. The typical legal analysis analyses the text of a case. For this work, however, the case: Hub Action Group v Minister for Planning (2008) 161 LGERA 136 will represent a milestone in a much longer history; as one moment when the nomosphere was disturbed.

I have attempted to listen, to hear what Delaney (2010, 47) refers to as the ‘nomospheric consciousness’:

As situations unfold they are assessed by participants. One dimension of assessment or judgment is the degree to which what is happening is seen as comporting with notions of fairness or justice. Actors assess not only what does, can or is likely to happen, but what should happen or shouldn’t happen, should or shouldn’t be happening.

The settings

In this project there were two competing nomic settings: the ‘regional’ (encompassing the surrounds of the provincial city of Orange) and the ‘local’ (the town of Molong) within the ‘nomoscape’ of the Orange Waste Project. These settings are typically, and in this situation were, defined not only by the law, but by understandings of geography and history. They are changeable and were changed. Participants in the controversy advanced arguments and justified their actions by reference to these settings.

The project and the conflict that it created has some of the hallmarks of a typical environmental justice controversy. It ended up a battle between a large provincial and historically wealthy city with an increasingly diverse economy and a small country village largely reliant on agriculture for its ongoing prosperity.

Orange is, within the Australian context, a relatively large inland city with a population approaching 40,000. It is a vibrant city whose growth, like a number of historic inland cities in Australia, was triggered by the gold rush in the mid to late 1800s and whose reputation and attraction is sustained today by its successful marketing of gourmet food and wine tourism.

Molong is a small country village with a population of a little over 2,100 people. In terms of population it is less than 1/16th the size of Orange. On most socio-economic indicators Orange is only slightly better off. The differences are, by and large, historical and cultural – reflecting how the places came to be as they are and how they are viewed by their residents and others.

The project

Turning now to what I have conceived as the nomoscape of the investigation. The Orange Waste Project had its origins in 1996, when the Orange City Council and Cabonne Shire Council first met to discuss a joint waste project. By 2000 the councils had agreed to find a site to build a facility that would service both municipalities: 90% of waste coming from the City of Orange and 10% of waste originating in Cabonne Shire.

The councils imagined a ‘Reprocessing Hub Resource Farm’: a tip, with a waste recovery facility – including recycling and composting components. In a highly controversial manner at the end of a site selection process Orange City Council purchased land in Molong and then announced that it would be the site of the Hub development, breaching commitments that it had made to to acquire a site with community consent and after alternatives had been ventilated.

The purchased land was a farming property on Euchareena Road 5 km from the Molong town centre.

The land remained the site for the development despite opposition initiated by nearby farmers that subsequently spread across the Molong community and despite planning impediments, and even after the Cabonne Shire withdrew from the project.

Local objections and policy

The Hub Action Group, formed by landholders nearby the Euchareena Rd site, led the opposition to the project. The project did not immediately inspire broad opposition, however. The local paper reported a general disinterest from the community at about the time the first environmental assessment was released in 2005. There appeared to be apathy in the media in the early stages, with muted support and minimal critique. Still, 139 submissions objecting to the project were made with respect to the first environmental assessment.

The principal objections then were reiterated in the years that followed. They were very much localised:

  • localised to the site: It was the wrong site. It lacked the necessary environmental strategies and planning support, with the Cabonne Local Environment Plan 1991 protecting the prime agricultural land of the site from adverse impacts.
  • localised to the immediate surrounds: There would be a risk to the local apiary business, and particularly on the neighbouring landowner’s use of his land for bee-keeping, while the development was not in keeping with the rural landscape; and
  • localised the Molong community: who would suffer amenity impacts, especially from trucks driving to and from the site through Molong’s town centre.

Overarching these perceived impacts was a sense that this project would deliver to Molong a destiny that it did not want – the status of being its neighbour’s waste dump.

The local concerns were backed up by local planning policy. In 2005 the project was assessed and its fate determined by the Minister for Planning standing the shoes of the local council. The Minister at this time was bound by the local planning policy, including clause 10(1) of the Cabonne Local Environment Plan, which provided that the Council shall not consent to an application to carry out development on land within Zone No 1 (a) … unless it:

  • makes an assessment … of the effect of the carrying out of that development on the present and potential use of the land for the purposes of agriculture, …
  • and is satisfied that the development will not have an adverse effect on the long term use, for sustained agricultural production, of any prime crop and pasture land.

The Minister approved the project after undertaking the required assessment and finding that the site was prime crop and pasture land, and that there would be adverse effects on the long-term use of the land. The Hub Action Group initiated a merits appeal to the NSW Land and Environment Court.

The court’s involvement

In that setting, the project was rejected because of its likely current local impacts and those that would be felt into the future. The judge also concluded that the project was fundamentally unsustainable because it was not apparent how the recycling and composting components would be developed or supported by local systems. It was the first significant nomic disturbance of the project.

Chief Justice Preston, whose function was to make the decision afresh, found that the development would have an adverse effect on the site, which was prime agricultural land, reducing its current and future use for agriculture. The landfill would displace agricultural uses while in operation, and after rehabilitation the soil profile above the landfill cap would be reduced, limiting the types of crops that could be grown on the site. The judge considered that these limitations could lead to a lowering of the agricultural class of the land. Further, the development would have an adverse impact on the nearby land used to farm bees and produce honey. This was because of a risk of contamination to the bees from the landfill. The judge concluded that:

[T]o approve a development which is likely to have these adverse effects on the long term use, for sustained agricultural production, of prime crop and pasture land would not be consistent with the principles of ecologically sustainable development. …

The provisions of the [Local Environmental Plan] … are part of a law supporting sustainable development, by protecting, enhancing and conserving the valuable resource of agricultural land and in particular prime crop and pasture land in a manner which ensures its use for sustained agricultural production. …

[The] development compromises future generations’ ability to use and enjoy to the same degree as the present generation the prime crop and agricultural land.

The Part 3A route

Its project rejected, and its partner, Cabonne Shire Council, no longer supporting the project, Orange City Council opted to take an alternative route to an approval that would side-step the court’s finding and alter the scale for the assessment of the project. This was a further and determiniative nomic disturbance for the project.

In early 2009 it applied for approval under Part 3A of the NSW Environmental Planning and Assessment Act 1979. This part of the Act was introduced in 2005, shortly after the first project environmental assessment was initiated by Orange City Council. It was introduced with a clear and deliberate intention of facilitating state-significant or regionally-significant developments. It did this by consolidating decision-making power in the hands of the Minister for Planning and his/her Department, providing immense decision-making discretion – including being able to ignore local policy – and created tremendous barriers to bringing an appeal against a decision of the Minister.

It was at this point that the opposition to the project was at its greatest. Orange City Council was accused of acting unfairly, undemocratically, and contemptuously of the court and the public. It was able to employ a process that had resulted in 6 of 442 applications being rejected over a 4-year period.

The local paper the Molong Express editorialised (27/3/08, 1):

OCC intend to lodge a “Part 3A application” with the NSW Department of Planning. Under this planning provision the Minister can deem the proposal “state significant” and rubber stamp the HUB proposal on prime agricultural land …. And no one, not even our Courts, can stop him. The “back door” route.

Moreover, the community’s justice discourse was no longer only grounded in distribution but also in procedure. The community presented their renewed battle as a David and Goliath one.

The ‘regional’ dimension

Under the law and supporting policy, a ‘regional’ landfill of the size proposed by Orange City Council was a ‘regionally significant’ development that could be assessed under Part 3A. The Minister for Planning had the power to declare that a project was a ‘regional’ landfill, if in his/her opinion it was a ‘regional’ one.

A strong critique could be made of the finding by the Minister that the landfill was a regional one – based on legal statutory interpretation principles or on common or geographic understandings or what a ‘region’ is. However, there was a very fragile basis for challenging that decision, even though this particular matter was highly contested.

The official position of the Hub Action Group was that the project was not a regional one. Its members argued that:

It portrays itself to be a regional solution. It is not. It is not supported by any other regional LGA and is opposed by the host Council, Cabonne. It has been ‘dressed up’ as a regional landfill for the purposes of Part 3A qualification. But in substance it is not.

However, Orange City Council had long been plying the narrative that its project was a regional one. Its earliest studies purported to investigate regional options. In 2002 the Council resolved that it would devise a regional waste facility and in defending its Part 3A application that Mayor of Orange argued that his Council had:

a responsibility to act in the best interests of the community to provide long-term regional waste management strategies … This proposal will deliver waste management solutions for the region well into the second half of this century.

In its third environmental assessment for the project the proponent indicated that there would be an opportunity for other councils to direct their recyclables and green waste to its facility, and they expected this opportunity to be taken up as the State’s waste minimisation strategies demanded further efforts to reduce volume of non-recoverable waste.

The Planning Assessment Commission, in its advice to the Minister made its evaluation on the basis that the project would be for the ‘region’ and not just Orange City Council. It was not restricted by, or had to comply with, clause 10(1) of the Local Environment Plan.

[T]he [environmental assessment] has satisfactorily considered the impact of the Project on the agricultural capability of the Euchareena Rd site and adjoining land and is taking the necessary measures to mitigate and manage this. In making this judgement, the PAC takes into consideration the agricultural capability of the Region, not just the site in question.

Residents of Molong are unlikely to see the greater environmental outcomes of the Project and may argue that there is no improvement in their amenity or convenience. … [Nevertheless,] the public interest is best served by the Orange region achieving a sustainable solution to waste management, with minimal impact on people in the region, businesses and the environment.

This was most apparent in the way the Commission framed the ‘public interest’ at the regional scale, and how the Commission acknowledged but discarded local impacts.

With such a strongly worded recommendation the project was approved subject to modifications that would make it one of the most technical and highly conditioned landfills in NSW; and a project that would be endorsed by former project doubters from the waste industry and environmental movement.


So what can we take away from this story other than a further impression of the troubles with a law that has recently been repealed by a Parliament led by a new State Government of NSW?

In this case we can see how the law responds to nomic scales, how it can prioritise one over others, and moreover how it can devise and define nomospheres. Law and geography can be firmly linked.

We can also see how the law can allocate and privilege actors within particular nomospheres, and can exclude judges and lawyers altogether from the nomosphere – vesting legal as well as administrative function in an often obliging government. The consolidation of unfettered power in this case created a type of spiral, where the most powerful actor in a nomoscape was able to employ that power to more narrowly define a nomosphere where that actor’s power was further increased.

Finally, the situation here is another example of local interest and concern being overwhelmed by other scales in planning and environmental assessment matters. This may be warranted depending on the importance and critical nature of a proposal. However, what is most worrisome here, and perhaps would be uncovered with similar critical inquiries into other projects, is that there was a very challengable foundation for departing from the local scale as the basis for project assessment but no real ability to challenge it.