FUNCIONAMIENTO Y SERVICIOS

4.1 Introduction

The first step to analyse how news media represent Public Environmental Litigation (PEL) during mediatized environmental conflict is to understand how the PEL news story is constructed. Research shows news outlets selectively cover both environmental issues and court cases (Anderson 2015; Solberg and Waltenburg 2014; Vining and Wilhelm 2010).

How the public interprets legal decisions and their perception of courts is influenced by the language describing court cases and symbolic legal references (Clawson et al 2003; Gibson et al 2014; Solberg and Waltenburg 2014). From an environmental conflict perspective,

discourse framing reinforces polarised positions but also opens opportunities for counter claims (Lewicki et al 2003; Schneider et al 2016; Worden et al 2014). This chapter aims to describe how news media respond when discourse on environmental issues and PEL court cases collide. By analysing media attention and the flow of language over time, the chapter argues PEL cases sustains media attention and ensures environmental campaigns remain in the news. In the case study, a surprise legal win by the campaign relatively early in the case study influences how PEL is described and the ongoing power dynamics between conflict actors.

124 4.2 An overview

4.2.1 Adani conflict news coverage

News coverage of PEL against the Adani mine was reported in context of the Adani conflict.

The Adani corpus (Australian print texts accessed from NewsBank or Australian digital texts from a news outlet website based upon the search term ‘adani’ as described in Chapter Three) represents news coverage of the Adani conflict. The Adani conflict first appeared in

Australian news in July 2010 when rumours began about Indian interest in the Galilee Basin and Adani secured the rights to assess the viability of new coal export infrastructure at

Dudgeon Point near Mackay, Queensland (see for example, Grant-Taylor 13/7/2010). Before this time there were no reports in the Adani corpus of Adani associated with ‘coal’ and

‘Queensland’. Since July 2010 news reporting followed the Adani mine project and the campaign to stop it. Monthly text frequency of the Adani corpus from July 2010 to

December 2017 is shown in Figure 4.1. demonstrating an increased level of news coverage over time and four news coverage peaks.

Figure 4.1 Adani corpus monthly text frequency

125 As shown in Figure 4.1 the analysis of Adani corpus text frequency revealed four news coverage phases of the Adani conflict. These were:

1. The Early Years phase (July 2010–June 2014) was characterised by low news

attention of the Adani conflict (average eight texts per month in the Adani corpus) and no news coverage of PEL events. Significant news events in the Adani conflict during this phase were the Federal Government environmental approval of the

expansion of Abbot Point Port in December 2013 and subsequent community outrage;

2. The Conflict Builds phase (July 2014–July 2015) was triggered by almost a doubling of the phase monthly frequency from June 2014 to July 2014 (16 texts to 29 texts per month in the Adani corpus), an increase of average phase monthly text frequency to 34 texts per month and the start of PEL media attention. Significant news events in this phase were the first Federal Government environmental approval of the mine in July 2014, changes to controversial sea dumping plans from the expansion of Abbot Point Port expansion in March 2015 and the November 2015 G20 Summit in Brisbane when Indian Prime Minister Modi visited Australia and investment agreements

between Queensland and India were announced;

3. The Legal Action phase (August 2015–November 2016) was determined by the first significant monthly peak in the Adani corpus in August 2015 (182 texts), an increase in phase monthly average text frequency (51 texts per month) and the most PEL events of any phase (17 events). The August 2015 coverage peak was caused by legal action initiated by the Mackay Conservation Group (the MCG case) and the Federal Court order to set aside the mine’s Federal environmental approval due to the Federal Environment Minister’s lack of consideration of conservation advices for the

vulnerable Yakka Skink and Ornamental Snake (as described in Chapter One). The mine was also given environmental approval and granted mining leases by the

126 Queensland Government in April 2016, just after a serious coral bleaching event on the Great Barrier Reef;

4. The Household Name phase (December 2016–December 2017) was characterised by the highest monthly text average (127 texts) and three of the four highest monthly peaks. The first phase peak occurred in December 2016 (146 texts) when discourse began to explore whether Australians should publicly fund the Adani railway through the Northern Australia Infrastructure Fund (NAIF). Coverage dipped and then peaked again in May 2017 when activities of the #StopAdani campaign (launched in March 2017) supported coverage. The highest peak across the entire Adani conflict occurred in November 2017 in response to the Queensland State Election.

The Adani conflict news phases demonstrate how news coverage has changed over time and the influence of events on peak coverage, including PEL events.

4.2.2 PEL newsworthiness

PEL events associated with the eight PEL cases in scope occurred between the Conflict Builds and Household Name phases (see Appendix D for event dates). Based upon the PEL sub-corpus (corpus constructed using texts found in the Adani corpus during weeks of PEL events mentioning PEL plus additional digital texts from news outlets in scope as explained in Chapter Three), all eight PEL cases, except two, received news coverage for at least one event type. This is shown in Table 4.1 which aggregates weekly PEL event news text

frequency to a case and event level. The MCG case gained the most news coverage, followed by the Land Court case where Queensland-based environmental group Land Services of Coast and Country objected to the mine’s approval on both environmental and economic grounds in the Queensland Land Court. The frequency of reporting per event for each phase is found in Appendix K through to Appendix N.

127 Table 4.1 PEL case and case event type news coverage in the PEL sub-corpus

Case Event ACF

1. NT = Not tracked indicates no legal records of these events are present or specific dates defined and hence news coverage not examined.

2. MCG case had two amendment events.

3. NC = no cost event found 4. NA = case did not go to appeal

As shown in Table 4.1, news coverage of the MCG case and the Land Court case was influenced by relatively high reporting for one case event each: the MCG case order (which caused the August 2015 peak news coverage) and the six-week Land Court case hearing.

When these two outliers were removed from the dataset, the ACF case attracted the most news coverage. The ACF case involved national environmental organisation the Australian Conservation Foundation challenging the Federal Environment Minister’s approval based upon Australia’s obligation to protect the Great Barrier Reef from climate change in the Federal Court. The ACF case was characterised by the highest number of case events (only case which went to appeal), coverage of all events bar amendments and the highest frequency for a filing event. News coverage of the NQCC case and the MCG sea dumping case, which both involved Queensland-based environmental groups opposing sea dumping of dredge material from the Abbot Point Port upgrade, was not present in the PEL sub-corpus. Both of these cases occurred early in the case study when Adani was not a legal party (see Section

128 4.3.1 for further discussion). Of all case event types, judgements generated the most news coverage, reflecting the time courts have an impact on the mine project. This is further discussed in later sections of this chapter describing news coverage of PEL events over time.

As well as frequency of reporting, the PEL sub-corpus was analysed for authorship to understand how news outlets resourced PEL. In this analysis 78 individual journalists

authored texts in the PEL sub-corpus. Of these, 19% contributed three or more texts and 63%

contributed one text. This is a substantial number of authors only engaged in one event, rather than the whole case or series of cases. Of those who contributed three or more texts (see Appendix O), none were dedicated court reporters and only one self-identified as an environmental reporter. Six authors included politics as a journalistic area while only three referred to the law or the court. News agency Australian Associated Press individually authored the most texts directly reporting on a PEL event (17 texts). This analysis

demonstrated many news outlets did not have journalists to attend court and, when combined with the absence of specialty court reporters and the high number of authors, showed thin resourcing of PEL.

The exception to this finding was the local news outlet Central Queensland News who had three journalists significantly reporting on PEL (27 texts from three journalists, see Appendix O). Based upon news text content, such as court room quotes, photographs and stories of events outside the court, it was also likely that these journalists attended court (see for example, Egan 26/11/2016, 25/8/2017; Frost 8/4/2015). These news stories provided different perspectives and a more personal touch to court reporting compared to outlets who used Australian Associated Press texts. For example, during the first two weeks of the Land Court case hearing multiple news outlets relied on Australian Associated Press for texts and only changed the headline and image, including the Sydney Morning Herald and The

Australian (Australian Associated Press 31/3/2015a, 31/3/2015b, 7/4/2015a, 7/4/2015b).

129 This created homogenised reporting across a number of outlets compared to the Central Queensland News coverage. The attention given to PEL by the Central Queensland News demonstrated PEL was newsworthy in the local community in which the legal action directly affected.

Thin resourcing of PEL from major news outlets and high media attention from local news outlets, sits alongside mixed observations of news media reporting on PEL by interviewees involved in this research (Anonymous, interview, X; Meadows, interview, 2018; Williams, interview, 2018). One interviewee from the environmental movement supported the newsworthiness of PEL and stated:

Well as I said, you can really guarantee that you will get media around a court case, whether it is announcing the court case, being in court, the court case finishing, the judgement, costs. It is kind of like a no brainer for media. I think that there is a still huge interest and respect for the court system, the judicial system in Australia, and the understanding that it is something that has real impact.

(Anonymous X, interview, 2018)

This interviewee also observed journalists attending court:

Key journalists turn up the first day of court, the press conference, the opening address, and be there when judgements come down. So it might not be that they read judgements or whatever, but it is more active than normal engagement with real events, I find, when there is court action on. (Anonymous X, interview, 2018)

At the same time as interviewees reflecting on journalists in court, they identified journalists were unable to dedicate time to court proceedings (Anonymous Y, interview, 2017;

Anonymous X, interview, 2018; Meadows, interview, 2018) and also highlighted the importance of journalists attending court due to limited access to court transcripts, particularly in Queensland where the transcription service is privatised and costly

(Anonymous Y, interview, 2017; Anonymous X, interview, 2018). Interviewee observations

130 of engaged journalists reporting on court activities contrasted with impressions journalists struggled to find time to be in court.

These mixed impressions contradicted the authorship analysis where only a few journalists were dedicated to court reporting. This may be influenced by the absence of journalists and media organisation representatives in the interview data. Observations were by the

environmental movement, litigants and lawyers rather than lived journalistic experiences and may be impacted by interviewee perceptions of journalist engagement if the same few

journalists were present at each event. For instance, a Central Queensland News journalist may be considered ‘key’ as described by Anonymous X, and, if so, interviewee evidence and authorship analysis were consistent. The results may also be influenced by the news outlets chosen for the corpus. For example, media monitoring for this research showed television news reported on PEL events. Interviewees may be referring to these more recognisable journalists in their observations.

4.2.3 The language of PEL

With the knowledge PEL gains media attention, it is also important to understand the language used to describe PEL and how news outlets interpreted court proceedings and conflict actor responses. Five frames describing PEL were identified using the approach defined in Chapter Three (see Appendix F through to Appendix J for frame language devices and text examples). These frames were:

1. The court conflict frame where PEL was positioned as a conflict between legal parties rather than the court as an independent place to mediate disputes. The frame placed the conflict in the court and drew upon battle metaphors, combatively communicated legal argument and evidence and interpreted court outcomes according to sides;

131 2. The activist tactic frame where PEL was positioned as a deliberate activist ploy in an

ideological war against the coal industry. The frame drew upon the language of war, conflict and criminality. But rather than describe a battle in court between legal parties, this frame used these language devices to infer the law was being misused and moved discourse away from the merit of the case towards the actions of the litigants.

Litigants were described as non-local activists who did not represent the views of regional Queenslanders. Cases were delegitimised and legal grounds trivialised to show they were a waste of time and resources. This perspective claimed activists caused delays in jobs and investment in regional areas which were desperate for economic growth. Legal delays were positioned as threats to industry, business and economic development. The only solution to the problem was to prevent activists from entering court and causing further delays. These characteristics placed PEL in a political space rather than the legal realm;

3. The public right frame where PEL was described as a democratic community right to uphold environmental law and protect the environment. Language positioned courts as independent rulers, mediators and decision makers. In contrast to the

de-legitimising, violent and criminal language devices used in the activist tactic frame, the public right frame was underpinned by the importance and reverence for law in a democratic civil society. PEL cases were not ‘gaming’ or ‘abusing’ the system, as described in the activist tactic frame, but were legitimate legal opportunities to stop the mine. The frame drew upon legal discourse to describe legal cases and court decisions in a measured tone combined with emotive language to describe actions under scrutiny, human connections with the environment and the mine’s

environmental risks;

132 4. The bureaucracy frame where PEL was positioned as an unnecessary regulatory step

in an already strict development approval process. The frame claimed the important project would overcome legal obstacles rather than be stopped. Governments were held responsible for bureaucratic processes and additional investment costs. A reduction in ‘red-tape’ was justified by the stringent, science-based, rigorous and lengthy approval processes already in place. The bureaucracy frame overlapped with the activist tactic frame language device ‘disrupt and delay’, but in this frame ‘delays’

would be overcome and not become an activist advantage;

5. The criminality frame where PEL was positioned as a test of environmental crime.

To heighten the idea mining coal was a crime against nature, coal mining was compared to other morally wrong societal crimes.

Prior to delving deeper into how these frames flowed through time, language devices

representing the frames were counted in PEL sub-corpus headlines (see Appendix F through to Appendix J for frame language devices and text examples). This analysis showed court conflict frame dominated news coverage (52%), followed by the activist tactic (27%), public right (13%), bureaucracy (7%) and criminality frames (1%).

In the PEL sub-corpus the court conflict was foremost in coverage as news outlets interpreted court decisions as either ‘wins’ or ‘losses’ (see for example, Schliebs 26/11/2016; Egan 25/8/2017). This view was combined with the most used language device in headlines: the term ’challenge’ (35 headlines). Despite ‘challenge’ being used in litigant media statements (and hence could be interpreted as representing the public right frame, see for example, Australian Conservation Foundation 2015a; Mackay Conservation Group 2015a), in this case study the term was combative when placed alongside terms such as ‘battle’ and ‘bid’ and positioned the litigant as the provocateur.

133 The presence of the activist tactic frame in headlines was influenced by terms such as

‘activist’ and ‘green groups’ to describe litigants (11 times each). Headlines also emphasised the number of cases using terms such as ‘another’ or similar terms (11 times). The words

‘activist’, ‘green groups’ and ‘environmentalists’ are highly politicised terms in Australia and used to represent left anti-development political views. These texts alerted the reader to the ongoing nature of litigation by those working from the margins trying to create change.

The presence of language devices supporting the public right frame in headlines was influenced by the use of legal discourse to describe legal parties and cases and the term

‘conservation group’ was found 13 times in PEL sub-corpus headlines. ‘Conservation group’

is taken from the Environment Protection and Biodiversity Conservation Act 1999 (Cth) standing provisions and is found in litigant group names, including the Australian Conservation Foundation, the Mackay Conservation Group and the Indian Conservation Action Trust. The title ‘conservation group’ directly countered the idea of litigants as

‘activists’ and drew upon the connection with environment and community. The term

‘dismissed’ was also used by the court and found in eight headlines. This compared to the use of court conflict frame language devices, such as ‘win’ or similar terms (nine headlines) and ‘lost’ or similar terms (seven headlines). The term ‘dismissed’ was less combative and placed the decision in the hands of the court rather than in the field of war.

The bureaucracy frame was less observed in headlines but used by industry actors to vindicate wins, lament losses and pressure governments to make legal changes. There was evidence within the Adani corpus (but outside of the PEL sub-corpus) of the influence of the bureaucracy frame on PEL discourse. For example, in October 2016 (in between two PEL events) there was significant reporting on the cost of PEL to the economy, foreign funding of activists and the stalling of development (see for example, Kelly 29/10/2016; Shanahan 27/10/2016; Shanahan and McKenna 24/10/2016).

134 The final frame, criminality, was rarely present in headlines across the PEL sub-corpus and was only used by litigants. This frame linked illegality, drug dealing and murder with PEL and the laws pertaining to climate change.

To understand the flow of language over time, language device counts in headlines were broken down per PEL event. As shown in Figure 4.2., there were no headline counts in the Early Years phase as there was no news coverage of PEL events (note PEL events in later phases without news coverage are excluded from the graph).

Figure 4.2 PEL sub-corpus headline language device counts

Headline language device counts began in the Conflict Builds phase, with court conflict dominating (76% of language device counts). In response to peak news coverage of the MCG case order, language device counts increased dramatically in 2015 Week 31. During this week activist tactic, bureaucracy and public right frames amplified in headlines and the relative presence of the court conflict frame decreased. Activist tactic language device counts tripled from 13% of language counts in the Conflict Builds phase to 46% of language device