Tag Archives: Sue Higginson

Cause of Action

The morning Sue Higginson invites me to court, she is there to hear the decision on a New South Wales Environmental Defenders Office (EDO) case disputing Chinese coal company Yancoal’s bid to expand operations in the Hunter Valley town of Camberwell.

Higginson is principal litigator and lately chief executive of the defenders office which, in this instance, had represented widowed octogenarian farmer Wendy Bowman’s property against Yancoal.

In the courtroom, a bewigged justice read the verdict.

“I dismiss the appeal,” he uttered dryly, “with costs.” And with that, a landmark case against Big Coal was won.

“We’ve got a political system that has privileged the rights of these multinational corporations over the top of community and environmental rights.”

It was another in a series of astonishing victories for the legal centre. Higginson and her outfit have a formidable record, having been responsible for a series of victories against multinational corporations.

“We’re very small and we punch way above our weight,” Higginson observes. “But change is slow in a system as big as ours.”

The legal centre suffered an enormous blow in December 2013, when then prime minister Tony Abbott pulled vital federal funding. The following year the NSW government also reduced state funding.

But Higginson and the EDO are nothing if not resilient. Since then, they’ve undertaken ambitious fund-raising drives that have helped facilitate recent wins over Japanese whalers, the Indian Adani corporation and its massive Carmichael coal project in Queensland, and now Yancoal at Camberwell.

Higginson’s is an amazing story. In 10 years, she’s risen to become head of an institution that is on the front line of environmental advocacy in Australia.

In an age of potentially disastrous global warming crises, women such as Higginson have formed the vanguard of Australia’s environmental protection. From Indigenous spokeswomen to corporate warriors, they are bringing the fight for survival from the fringe of activism to our mainstream courts and stock exchanges.

With up to 90 per cent of Australia’s landmass under exploration or mining licences, many of these issues directly relate to mining and the extraction of fossil fuels.

Sue Higginson’s story is particularly germane, as her role means she is directly involved in legal battles across the spectrum of environmental issues. It’s a role she relishes, one she’s been working towards since she came to the struggle in her mid-teens, while at school in Melbourne.

“I picked up that in NSW we were logging old-growth forest and that there was very little left. And as an inquisitive young person I kept looking for the sense in that,” she says.

She left home for northern NSW, where she joined the North East Forest Alliance. “It was an organisation that had a plan, and I need a plan,” Higginson says. “I’m not just an emotional operator, I need to operate on the basis of scientific evidence and most importantly within a context.”

Higginson spent years on the remote front line of forestry campaigns, negotiating with loggers and police at often-volatile blockades. After the forest alliance won seven landmark court cases and successfully stopped old-growth logging in NSW, she found herself sitting across from government ministers, helping carve out the deals that created the forest reserve system that stands today.

“I found myself having to master all these skills. I learnt a lot about the legal system, about social movements, and I saw a very clear line in that you do it through science and evidence,” she says.

“So I got myself into university and I could see all the way from day one that the law was going to be the tool to further the actual purpose that I was put on the earth to do, and that was to protect the environment.”

Graduating with first-class honours, Higginson began working in private practice. Three years later, she took a job with the Environmental Defenders Office. After seven years, she became principal solicitor. In 2015, she became chief executive.

“I’ve become an expert in public interest environmental law, and the best vehicle in this country to assist the community is the organisation I work for,” she says. “Becoming CEO means that I can have a seriously committed attempt at keeping this organisation the best it can be.”

That is a very high standard. The office has operated with remarkable success for 30 years, so well that it has made very powerful enemies.

In 2012 the Minerals Council’s chief executive, Stephen Galilee, accused the EDO of a “deliberate campaign of economic sabotage” and the next year lobbied for punitive measures from attorney-general George Brandis and then NSW premier Barry O’Farrell, who later stood down over evidence given to the Independent Commission Against Corruption.

Indeed, two Labor and 12 Liberal MPs have been dragged before ICAC over corruption allegations related to the approval of coal and coal seam gas mining projects in recent years. Nonetheless, Higginson’s outfit lost most state and federal funding.

Private funding by tax-deductible donations is also endangered, as the Coalition has sought to revoke the office’s charitable status.

“It’s times like that that I have a rare moment of questioning the effectiveness of what we’re doing,” Higginson confides.

“We’ve got a political system that has privileged the rights of these multinational corporations over the top of community and environmental rights.”

In 2013, the office represented the citizens of Bulga, a small town in the Hunter Valley, against the extension of an open-cut mine owned by Rio Tinto. The office won the case, at which point O’Farrell changed legislation so the miners could appeal. After a second loss, and O’Farrell’s disgrace, the Baird government has amended its rules in a third attempt to force the mine expansion.

“So that’s the other thing, you’ve gotta be a fighter in this job,” Higginson says. “The sense of injustice is just horrific when that happens.”

Such injustice has provoked considerable civil unrest as citizens, many of them farmers, are becoming aware of the power that multinational miners hold over their country.

“Now we’re seeing this massive growing movement throughout NSW and Queensland. Farmers who have never protested against anything before are standing up to say, ‘Enough’,” Higginson says. “When I started my foray into environmental protection, there was a lot of polarised conflict. It was loggers versus greenies or farmers versus greenies.

“But in the last five years, traditional National Party voters are seeing reason in what the greener side of politics is speaking.

“You throw in the very serious issue of climate change and you’re getting a very complex alliance of people.”

This first manifested when farmers, assisted by the Environmental Defenders Office, began mobilising against massive coal and CSG projects in Queensland. It came into its own in the Northern Rivers of NSW, where a coalition of farmers and townspeople combined to see off speculative CSG mining company Metgasco.

More recently on the NSW Liverpool Plains, a similar alliance has vowed to stop Shenhua’s planned 35-square-kilometre open-cut mine in some of the finest agricultural land in the country.

In the Pilliga Forest, where mining company Santos seeks to drill more than 800 CSG wells in the recharge area for the Great Artesian Basin, farmers from all over north-western NSW are joining activists to blockade drilling rigs.

“The clients that I work with…” Higginson says. “It’s hard to explain just how dedicated and committed these groups and individuals are and the burden that they carry, in most cases on behalf of all Australians, of generations that haven’t yet come.”

This workload takes a heavy toll on Higginson, as she commutes between work in Sydney and family in Lismore. But she is resolute that the sacrifices she makes are more than compensated for by the importance of her work and of the law centre.

“I know this office really well. When I say this office, I’m talking about an institution that has developed over 30 years and needs to be here, not just in the next 30 years but as long as we have a civil society that is governed by a legal system. This office is fundamental.

“Some nights, when it’s hard to sleep because I’ve got a massive case the next day, I long for the day when somebody taps me on the shoulder and says, ‘My turn,’” says Higginson.

“But at the end of the day I know that seeking environmental justice is not about one case. This is a lifetime engagement and it will go beyond my years.”


A gathering storm

The perfect storm – Shenhua and the Liverpool Plains

The softly spoken Andrew Pursehouse is a well-known man on the Liverpool Plains. Patriarch of a long established farming family, a prominent businessman, a respected regional elder. He’s brother-in-law to former Independent MP Tony Windsor and a founding member of the Caroona Coal Action Group (CCAG), representing over 400 landholders and local businesses, the longest running opponents of the Shenhua Watermark mine.

Finally approved in July 2015 by Environment Minister Greg Hunt, this would allow a massive 35km square open cut mine in the middle of the finest agricultural land in Australia.

The mine is now awaiting final approvals from the NSW government, whose leader Mike Baird, Nationals leader Troy Grant and local member Kevin Anderson all made pre-election assurances to the members of CCAG that they would oppose the mine.

Pursehouse and a majority of farmers across the State, in a new alliance with other concerned groups have vowed to fight this mine to the end – ‘whatever it takes’. As Tony Windsor famously said, they consider it to be the wrong mine in the wrong place.

But with the federal Government attempting to strip Australians of their right to contest mining proposals through gutting the Environment Protection Biodiversity Conservation Act (EPBC), a perfect storm of dissent is looming.

Andrew Pursehouse points to the dining room table of his house, just above the Mooki River, the life blood of the Liverpool Plains.

“Before the election Baird made a commitment at that table right there. He said ‘I’m going to take this on personally’. We’ve never heard from him since. So them being here was an election stunt.”

There were plenty of witnesses. The members of CCAG present, conservative farmers all, were Fiona Simpson (former president, NSW Farmers), John Hampersum, Juanita Hampersum, Jim McDonald, who used to sit on the Independent Expert Scientific panel, Susie Lyall and political lobbyist Tim Duddy.

The plain facts

Andrew Pursehouse is under no illusions as to the damage such a mine would cause on the Liverpool Plains.

“It’s not just the water issue and potential damages to the aquifer, it’s the salt and the dust on 270 degrees around it, what that can do to our agricultural products, the koalas, the Aboriginal heritage.

Fiona Simson, former president of the powerful NSW Farmers group, is adamant that the farming community will never allow this mine to be built.

Simson’s focus is on Shenhua’s passing the fit and proper person test that was put in place by this government last year. Shenhua currently has four senior executives under investigation for corruption.

John Hamparsum, whose farm lies very close to the immediate impact zone of the mine site, is rather more blunt:

“The people’s resolve is such that there’ll never be a bulldozer on that country.

“The gloves would be off and it’d be civil disobedience at a level that the government hasn’t seen in NSW. Tempers are that point now that people want action, they want blood.”

CCAG have already launched 27 anti-mining court cases.

In 2008 they first opposed BHP with a blockade at Breeza led by the octogenarian George Clift, who famously stated that he’d meet them at the gates with a shotgun before he’d let them mine the Liverpool Plains. That 635 day blockade effectively discouraged anyone from attempting to mine here till 2011, when 100 farmers blockaded Santos from exploratory drilling for coal seam gas.

Andrew Pursehouse warns of a politically ruinous anti-mining campaign, if Hunt elects to pursue this course.

“We’ve got good grounds for further legal action and we’ve got the support of the Australia Farmers Fighting Fund, because this is of national significance. We’ve already spent round about a million bucks fighting this.

“So we’re not afraid to put money where it counts. But if all else fails we’ll stand up for our rights and invite whoever wants to be here and stop this nonsense. Don’t underestimate what a farmer can do.”

A national concern

The Shenhua Watermark mine has been been mired in controversy since corrupt former Labor minister Ian McDonald first sold an exploration license to the Chinese on the misconception that it was further south in the Hunter Valley.

Now the structural price of thermal coal is steadily falling and Chinese coal imports have dramatically dropped away as their sluggish domestic economy, concerns over pollution and increasing reliance on renewables start to bite.

As national attention has focused on the Liverpool Plains it has become clear that the negative impacts of coal mining are becoming critical in the national consciousness.

An online petition garnered over 50,000 signatures, while an independent Facebook group with hundreds of members is pledging to launch a citizen’s blockade.

Gunnedah’s Namoi Valley Independent newspaper held an online poll that showed 97% of 4,700 respondents to be against the mine.

And a new crowd-funded TV campaign from citizen’s advocacy group Lock The Gate is spearheaded by Alan Jones, who in it declares that “the latest move by the Abbott government puts at risk not just our environment but our very democracy”.

That notion of democracy hinges upon a belief in the sanctity of its iconic bellweathers. Besides food and water security two other salient issues here are Aboriginal cultural heritage and the koala population.

Mitcham Neave, a traditional owner (TO) of the Gomeroi people claims that while the entire Plains are sacred there are special sites, known as the Grinding Grooves, which absolutely must be protected.

Neave says they are an important war memorial site, where warriors used to sharpen spears for conflict with marauding Casula or Wiradjuri tribes – and white settlers.

“This is our Gallipoli site right here,” he says. “You wouldn’t like it if I destroyed your war memorial, I’d be locked up.”

He says they cannot be safely moved.

“Some of those sites are the size of a double decker bus. I don’t care what rock doctor they get, as soon as they move it you can’t put it back together.”

He and his fellow TO’s, who have followed all the processes within the law to this point, are fed up with being ignored. Neaves says he’s now ready for more direct action.

“I won’t speak for other people but I’ll join a blockade. We’ve had a gutful of the destruction of our culture, we’ll rally together.”

Sue Higginson is principal litigator for the Environmental Defender’s Office (EDO), who are representing the Upper Mooki Landcare Group in a public interest case on behalf of the koala populations of the area.

“They’re alleging that when the PAC made their decision they have failed to properly consider the impacts the mine is going to have on koalas,” she said.

“Essentially there’s a requirement that questions is this mine likely to place a local population at risk of extinction? Never did they answer that question. And that’s what it comes down to.”

Higginson says that the government is proceeding in non-compliance with the laws surrounding mining developments, just as they did in Queensland, where Adani’s case was defeated after Environment Minister Greg Hunt failed to take into account the fate of two threatened species in his approval of the Carmichael mine.

The head of the Landcare group is Nicky Chirlian, a speech pathologist and farmer who lives well clear of the mine site.

“My initial reaction is these bears are just going to die,” she says.

“Shenhua’s translocation plan effectively means the koalas have to get down from the trees and run away from the bulldozers in the first instance. The Koala Foundation has warned very clearly that translocation of koalas had a very high mortality rate of 90-100%.”

Tony Windsor, former Independent member for Tamworth and New England, sees behind these emotive issues a clear legal disconnect. He’s well placed to comment on the issue, being the man who effectively negotiated the ‘Water Trigger’ bill through the Senate in 2013, ensuring that coal seam gas (CSG) and coal mining projects cannot proceed until independent scientific advice concludes they won’t damage water resources.

“My viewing of the tea leaves is that this mine won’t happen,” he said. “Part of that will be because of public resistance, part will be because of the breach of process from both Hunt and Baird.

“I believe it can be shown that Hunt, Baird and Barnaby Joyce haven’t abided by their own processes of the law. In fact by circumventing the bio-regional assessment process they’ve removed the very evidence that’s required to determine the longer term scientific implications of this mine.

“All of those things will eventually get explored in the courts, that’s one of the reasons why Abbott was on about the environmental vigilante stuff. They talk about Adani but it’s just as much about this mine and the Chinese Free Trade Agreement as anywhere else.”

“It’s the most complex issue that I’ve ever dealt with in politics and it’s the easiest one to create politics out of.”

An Alliance is formed

Now CCAG have entered into a Liverpool Plains Alliance with other groups – including traditional foes in environmental groups such as The Wilderness Society.

Instrumental in forming this alliance has been Naomi Hodgson of the Wilderness Society. She has earned the respect of north western NSW farmers for her staunch campaigning in the Pilliga forest, where some 18 local landholders have been arrested striving to prevent Santos from establishing a proposed 800 CSG wells.

“This issue has sparked a raw nerve throughout the populace,” she said. ““People who’ve never before felt strongly on coal mining issues can see that we must draw a line against the industry’s perpetual expansion, digging up some of our best food producing country for coal is a proposal that crosses that line.”

The Alliance has created a major social movement on the Plains, abetted by the emergence of the Liverpool Plains Youth, comprising the sons and daughters of local farmers with perhaps less of the ingrained resistance to green groups as their forebears. They’re planning an activist training weekend in November to prepare against potential police confrontation.

This continues a phenomenon begun at the anti CSG blockade at Bentley in northern NSW, where hundreds of conservative townspeople and farmers aligned themselves with environmental groups and activists to stop that proposal.

The Bentley effect

Aidan Ricketts is a legal academic from Lismore, close to Bentley. A veteran forestry activist, he was instrumental in the conduct of the Bentley campaign. In the emergence of this Alliance he sees a similar catalyst for widespread community dissent.

“The Liverpool Plains really cracks open the agriculture versus mining issue.

“The Plains is a whole grab bag of signifiers – China and the Free Trade factor, indigenous heritage, the koalas, Tony Windsor and water, even this Pacific leader’s forum. Each one’s capable of igniting a different constituency and where you have this grand alliance coming together it all rises up and boils over. Once that happens the system as a whole becomes far greater than the sum of its parts and that’s where the Bentley effect comes in.

“It’s a bear trap for the National Party as well. They couldn’t have picked a worse place to try it on.”

Phil Laird, an ex-farmer himself and president of public advocacy group Lock The Gate, points out that following their corruption scandal, Shenhua are dramatically curtailing their capital expenditure in overseas markets. He says that detailed market analyses show a pronounced downturn in Chinese interest in Australian coal.

“Shenhua don’t necessarily want this mine. Probably if it wasn’t approved by Greg Hunt they would have quietly welcomed the decision. They don’t want to build any new greenfield sites. Their focus is going to be on brown fuel sites inside China.

“China produces about 4.5 billion tonnes of coal a year. Australia produces about 450 million. They’re reducing their production by about 10% a year so they’re effectively reducing their production by the entire Australian production. Now they’ve been stuck in a situation they don’t want. They’re looking for a face saver of some kind.”

The new landscape

Andrew Pursehouse is pinning his hopes on a political solution. In the light of a new political landscape he says there may well be a change of heart on this matter. Prime Minister Turnbull owns two farms in the Hunter Valley and he and his wife visited the Pursehouse property three years ago.

“Turnbull has been a water minister so had a pretty good understanding of the delicate water systems we have here. So he’d be more of a friend than Abbott.”

More recently, Independent MP Jacki Lambie attended an anti-mine tractor rally on the Plains and stayed two nights at the Pursehouse residence.

“In the senate recently she exposed large political donations from four Chinese names connected to Shenhua ,to Labor, Liberal and the Nationals,” Pursehouse said.

“So we’re looking at changes in that sphere, but if all else fails, well, the people that did the Maules Creek blockade are looking for a new camp, they want to come here.”

He points to the nearby town of Breeza, where Murray Dreschler, the founder and stalwart of the Maules Creek mine blockade, has established a weekend camp, on invitation from the Breeza Progress Association.

“So it’ll be more than just farmers, it’ll be the so-called green element. The passionate professionals, along with the general community. If all else fails it will come to that, but this is last resort stuff.”

Mike Baird’s office was approached for comment on Andrew Pursehouse’s claims. His press officer declined.

The law of the land

When I spoke to the unstoppable law enforcer Sue Higginson she was still in the office at 10pm on a Tuesday night. After a landmark win over Whitehaven Coal to stop the slaughter of native animals with a brutal winter tree clearing in Leard Forest, she was celebrating with a single glass of champagne and a few more hours work. Continue reading The law of the land