Cian Hussey: Critical minerals deal a boon for Australia, but will be met by Section 487 battle from Greens

The critical minerals deal Prime Minister Anthony Albanese signed with President Trump during his visit to the United States this week should be a huge win for WA. But the investment it could unlock in resources projects will not be forthcoming while these very projects can be subject to sometimes vexatious and always costly legal challenge by green activists.

The notorious Section 487 of the Federal Environment Protection and Biodiversity Conservation Act 1999 should be in the sights of the Albanese Government. It is the section of the Act which allows green activists to launch legal challenges to ministerial approval of projects.

Community members who are impacted by a project should always have a right to be heard. Throughout the approvals process, both at a State and a Federal level, there are multiple opportunities for individuals, community groups, and other stakeholders to voice their support or opposition to a project. That is right and fair in our democratic system.

Where Section 487 takes it too far, however, is by extending the right to legally challenge an approval, after it has been given, exclusively to environmental groups, regardless of if they are directly impacted by the project. It means that an approval is not really an approval.

We have seen in recent years the extreme lengths such legal challenges can be taken to, which hold up projects for years after they have been ticked off as environmentally sound by both the State and Federal governments.

Green activists relish in the opportunity Section 487 gives them. We know, because they have told us that lawfare is part of their strategy to “disrupt and delay” key projects. As revealed in a 2011 strategy document prepared by Greenpeace Australia, the aim is to “increase costs” and “raise investor uncertainty”.

And they have done just that. An Institute of Public Affairs report published in 2020 found that lawfare under Section 487 between 2000 and 2019 put at risk over $65 billion of investment in major projects by holding these projects up in court for a cumulative total of 10,100 days.

These significant delays cost project proponents millions and clog up the court system, imposing direct costs on all Australians who rely on timely and efficient access to public courts. What is extraordinary about Section 487 challenges is that 94 per cent of them do not result in any meaningful change to the original approval provided by the environment minister; that’s how robust Australia’s approvals process is.

It is therefore hard to make an environmental or public interest case for Section 487. It has become the tool of green activists who are ideologically opposed to natural resources projects, and who will use any means available to them — including clogging up public court systems with vexatious litigation — to scare investors away from Australia.

And their strategy is working. According to data published by the Australian Bureau of Statistics, mining investment in Australia has been anaemic, sitting below 2 per cent of GDP for the past eight years. During the mining boom, it reached peaks of almost 7 per cent. And back then commodity prices were not as high as they are today.

Usually when commodity prices increase, mining investment follows shortly thereafter as companies take advantage of high prices to develop new projects, creating jobs and a booming economy. This time round, investors have stayed away.

Their mining investment is going to other countries that have proved more attractive. The Canada-based Fraser Institute in its recent Annual Survey of Mining Companies ranked WA as the 17th most attractive jurisdiction in the world for mining investment. And that was our most attractive State. WA always ranked among the most attractive in the world, but as with all other Australian States and Territories has fallen sharply in recent years.

Something clearly needs to change. The US critical minerals and rare earths deal should be great news for Australians, and for West Australians in particular. But unless we remove self-imposed burdens, this will not happen.

Australians must always have a right to be heard about major projects proposed in their State and in their country. But green activist groups, some of which are funded by foreign interests, should not have a right to engage in vexatious lawfare at the expense of the Australian people.

If the Albanese Government is serious about unlocking Australia’s mineral wealth, there are a range of burdens they could easily remove. Section 487 is one of them. It causes lengthy delays, clogs up our public court systems, scares off investment in Australia, and provides no environmental benefit to Australians.

Cian Hussey is a Research Fellow at the Institute of Public Affairs and writes No Permanent Solutions on Substack.