Last week, Australia’s top oil and gas executives gathered at the Australian Energy Producers conference to sound the alarm on the rise of so-called “activist lawfare”. Speaking at a session titled “From Placards to Plaintiffs” — of which Crikey obtained a recording — panellists including Santos’ Kevin Gallagher and Woodside’s Meg O’Neill rattled off a list of reasons why public-interest climate litigation is a scandalous threat.

Woven through their arguments were narrative tactics aimed at delegitimising communities that seek to uphold the law in court, casting them either as nefarious, sophisticated operatives with “legal budgets a lot of the big firms here represented today wouldn’t even rival”, or unserious, infantile activists with “ideological” legal strategies — claims that are hard to reconcile.

The conference’s “lawfare” session is part of a broader push from the resources sector to shut down the growing wave of community climate litigation — a playbook honed in the 1990s with attempts to undermine the courts amid the landmark Mabo and Wik decisions.

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This year, multibillion-dollar gas giant Santos, represented by the US firm Quinn Emanuel — the “most feared law firm in the world”, according to its website — recently aggressively pursued the Environmental Defenders Office and four civil society organisations that had expressed support for traditional owner Simon Munkara’s unsuccessful case against them.

To the applause of the gas industry, the new Northern Territory government recently removed the power of courts to review government decisions made under petroleum, planning and water laws (called third-party merits reviews) — a critical way communities can use the courts to ensure environmental decisions made by politicians comply with the law.

Similar changes are popping up at the federal and state levels. Conservative media pundits have provided a steady drumbeat of anti-“lawfare” rhetoric throughout, with commentary in The Australian last week calling on governments to “fix” the issue of pesky legal accountability. These narratives and legal tactics come from a global gas industry playbook designed to lock in the industry’s profitability, despite the unequivocal scientific evidence that gas pollution is driving radical climate harm. 

Demonising public participation in the courts is a dangerous path. Holding the powerful accountable to the law is a basic tenet of liberal democracy. Undermining the courts by attacking the moral legitimacy of public interest litigation or limiting judicial oversight can have catastrophic long-term impacts. One cursory glance at the US is enough to remind us that communities must have access to a trusted democratic backstop.

What’s conveniently left out of “lawfare” accusations is the agency and grassroots credentials of plaintiffs. The word “activist” is used as a smear, evoking images of inner-city blow-ins enacting a woke agenda, detached from the wishes of real locals. In reality, it is the communities directly impacted by climate-polluting developments that are typically bringing litigation.

Take Mardathoonera woman and traditional custodian Raelene Cooper, who has been striving to protect the ancient Murujuga rock art, comprising more than 1 million ancient rock engravings that are eight times older than the pyramids. Pollutants from Woodside’s North West Shelf are threatening the sacred site, and the federal government has failed to process her cultural heritage application for more than three years.

Or take the group of NSW farmers who have just this week filed a challenge to Santos’ 50km Narrabri gas pipeline, which risks damaging vital rivers and aquifers — clean water sources they are dependent on. Litigation is an adversarial and taxing task, but how else can people assert their legal rights when governments fail to uphold or enforce the law against powerful corporations? 

Missing from these narratives is also an acknowledgement of the robust mechanisms courts have in place to dismiss dodgy cases. “Lawfare” arguments imply that companies are being vexatiously bombarded by nonsense cases. But it is for a court to decide if a case has merit, not senior executives of gas companies. In fact, for a case to make it to a hearing, the court must judge it as having legal merit.

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The fossil fuel industry is terrified of the accountability that litigation brings. Courts have the power to cut straight through the protective padding of PR spin and bring discussion into the realm of facts, and make orders on this basis. The gas industry has recently found this out the hard way via a wave of greenwashing litigation that challenges its deflect, distract, obfuscate strategy.

Last month, in response to a case brought by concerned parents, Energy Australia was forced to publicly apologise to 40,000 customers and admit carbon offsets do not neutralise the damage of fossil fuels. At the same time, Santos shareholders have been in court to challenge the company’s widely marketed “clear plan” to reach net zero by 2040 and claim that natural gas is “clean energy”, alleging they are “little more than a series of speculations”.

Some may remember the wave of community litigation that steered public discourse against the tobacco industry in the US. The tobacco industry’s attempt to spin its way out of the devastating health impacts of cigarettes was no match for the scrutiny of the courtroom. The oil, coal and gas industries have strategically ducked and weaved litigation for decades, but the law is catching up with them. They’re desperate to shut it down. 

We must resist the self-interested calls of polluters to shut communities out of the courts. The alternative puts our democracy on a dangerous path. 

Do you trust the courts to stand up to giant fossil fuel companies? We want to hear from you. Write to us at letters@crikey.com.au to be published in Crikey. Please include your full name. We reserve the right to edit for length and clarity.