Paul Murray: Labor should consider how Mark McGowan might have dealt with Environmental Defenders Office

There must be one recurrent question that people inside WA Labor keep asking themselves. “What would Mark have done?” As unlikely as it was to many people who witnessed Mark McGowan’s political career up to becoming Premier in 2017, he somehow found a connection with big numbers of West Australians in difficult times. The key to McGowan’s success was that, after a very shaky first year, he came to realise when facing the pandemic that he needed to govern firmly from the centre. Even though the complexion of his Caucus moved to the left over his period as Labor leader, McGowan’s instinct, and later the direction of his absolute control, came from a political position to the right of most of those he commanded. None of that is replicated in Roger Cook. He is a rusted-on creature of the left. The judgment by Justice Natalie Charlesworth in the Federal Court action brought by the taxpayer-funded Environmental Defenders Office to stop Santos’ $5.3b Barossa LNG project off WA’s northern coast should have been a wake-up call for Premier Cook. Justice Charlesworth exposed the EDO’s case as a sham built on fabricated evidence. There has been no apology for the legal trickery. It went to the core of the tactics that blinkered activists are using to destroy the gas industry, having successfully killed off coal. Armed with that evidence, would McGowan allow these vandals — part of an international network — to wage an unrelenting war through the courts to bring WA’s gas industry to its knees? Given that both McGowan and his former deputy and Treasurer Ben Wyatt have both ended up working for businesses with interests in gas, the answer is likely to be no. But faced with Justice Charlesworth’s devastating findings, Premier Cook said his government would continue to fund the EDO. Liberal leader Libby Mettam promises to axe it. Cook’s limp response came days after Federal Liberal leader Peter Dutton pledged at a Chamber of Minerals and Energy WA breakfast to end Canberra’s support for environmental “lawfare” claiming it stymies projects and curtails investment. The Albanese-Chalmers Budget in October 2022 restored funding of $10 million to the EDO and Environmental Justice Australia, previously cut by the Abbott coalition government in 2013. “We’ve funded EDO along with the other State Governments and indeed the Commonwealth to ensure that all voices are heard in terms of the environmental process and in terms of the development of these projects,” Cook said. Such naivete is alarming. Does he understand how resources companies being strangled by lawfare spooks trading partners like Japan who want guaranteed, long-term supplies? Unfortunately, there is no shortage of left-leaning philanthropists, comfortable having made their money through capitalism, who want to fund this legal adventurism. They don’t need help from governments to effectively undo democratically-achieved policies and trample the rights of the public to reliable, affordable energy supplies as the world transitions safely to renewables. Cook’s position was markedly at odds with that of Resource Minister Madeleine King, a Labor colleague who represents the same electors as the Premier, but is far less equivocal in her support for the gas industry. In a pointed rebuke of the EDO, King said “community legal centres should not be seeking to divide communities in pursuit of ideological ends”. “The comments on the EDO’s conduct by Justice Charlesworth in her recent judgment speak for themselves,” she said. This was one Charlesworth comment about the case advanced by the EDO: “The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this court via an expert report, and I so find.” The EDO hired the “expert”, a University of WA academic, and knowingly used his fabricated “cultural mapping exercise” to build its case. Shameful. I am indebted to my longstanding colleague Norman Aisbett, a former Australian Journalist of the Year, who has investigated the links between activists seeking to use our courts to kill off gas and their funding. EJA rejected the Albanese government’s money in March 2023, claiming the conditions were too restrictive, saying it wanted to remain “bold, fearless and independent”. It obviously had other sources. Soon after, it took Environment Minister Tanya Plibersek to the Federal Court over two Queensland coal mine proposals. The case is on-going. The EDO carried on with its grant of $8.2 million over four years, using the money for the Santos debacle and an action stalling Woodside’s planned $16.5 billion Scarborough gas hub 375km off the Pilbara coast. Both projects allegedly threatened Indigenous cultural heritage sites on the sea floor. In the Woodside case, the EDO represents Greenpeace, on behalf of an Indigenous woman whose claimed links to the areas in question do not appear to be backed by any Native Title Tribunal determinations. So is the EDO a “community legal centre” as King brands it? Clearly not. In 2022, the registered charity spent 134 days in court opposing resources projects. At the end of last financial year, it had $11.8 million in the bank and 100 employees. The EDO is aligned to a phalanx of legal groups in Australia and overseas sharing a drive to win “landmark” and “precedent-setting” court judgments to overturn government policies — thereby side-lining political and parliamentary processes. Called the Climate Litigation Network, it runs a self-professed international “Climate Trials Campaign” targeting governments not following their ideological agenda. The network was the creation of a Dutch organisation called Urgenda Foundation that in 2015 won world-first legal action on behalf of more than 800 people ordering the government to increase its greenhouse-gas emissions targets. Upheld on appeals in 2019, the order has inspired activist legal groups worldwide. Urgenda’s website exposes the playsheet: “The world is witnessing an avalanche of climate lawsuits that is unstoppable. Our cases are inherently intertwined. “Courts are relying on landmark rulings from other countries so with every win we are building stronger ground for future hearings and new legal challenges targeting governments’ inaction.” The direct threat to parliamentary democracy should be obvious. But obviously not to people like Cook and Albanese. Sydney-based Grata Fund is listed as a network member. It has in-house legal staff and access to pro bono lawyers. Its executive director is a former director with activist pests, Getup. The CEO of the EDO is a member of Grata’s advisory council. Philanthropists support Grata generously. One of them is Melbourne’s Alan Schwartz, who made his money in publishing, software and professional services. In a recent podcast with a group called the Australian Environmental Grantmakers Network, Schwartz admitted his children had influenced his thinking about climate change. But he also said there was good money to be made in the transition to net zero: “Whoever knows how to do this will be very profitable. Whoever can work it out. “So, it’s moved from the social activism, the social activists, and I give Greta Thunberg credit, and I give Greenpeace credit, because now we as a society have a consensus that we need to move forward. “Whereas companies, like most companies, were leaning back 15 years ago saying, how do you expect me to make the change? I’m cutting my throat. My competitors won’t. There’s no requirement for it. “Now companies are leaning forward saying, how am I not going to get left behind? How can I keep up with all the opportunities, with all the threats, if my competitors decarbonise faster than me, they’ll have an advantage with their exports.” Not, is this justified and right? Rather, we must chase a commercial imperative. He’s stumping up $100m. “We’re still looking around for opportunities because I was able to persuade my board that this was not philanthropy, no trade-off, pure commercial returns,” Schwartz said. But at the same time, he’s funding lawfare. Which is obviously also good for business. One of his avowed favourites is the Grata Fund, which funds EDO cases. And so the circle closes. “That came out of my observation that Donald Trump launched 61 legal actions claiming that he had been cheated of the elections and he lost 60 of them,” Schwartz said. “The one that he didn’t lose was on a technicality.” And what’s the economic cost of tying up businesses in lawsuits for a one-in-60 win on a technicality? The intention is clearly to enmesh the courts in never-ending litigation to contest the legitimate activities of corporations and to try to undo the policies of democratically elected governments. That puts our energy future in the hands of unelected judges of unknown political and ideological persuasions. Many do not exhibit Charlesworth’s admirable rigour. This is not the courts operating as the third arm of government as intended, inferior to the parliament and the executive, albeit a necessary backstop. It attempts to make the courts an ideological battering ram, superior to the others. Parliaments need to act to assert the people’s democratic primacy before it’s too late.