This is the final part of a three part series of articles by Dr Ted Christie focussing on the environmental issues involved in recent development proposals affecting the Great Barrier Reef. Dr Christie is a barrister and environmental scientist with a keen interest in the use of dispute resolution processes to facilitate the cooperative selection of best outcomes for Australia.
The evaluation by the International Union for the Conservation of Nature and Natural Resources for the inclusion of the Great Barrier Reef in the World Heritage List in 1981, stated “… if only one coral reef site in the world were to be chosen for the World Heritage List, the Great Barrier Reef is the site to be chosen”. UNESCO World Heritage Committee
A pre-condition for resolving public interest environmental conflicts is to ensure that structural conflicts do not limit effective public participation. Structural conflicts arise when an imbalance of power exists. Affected community interests – such as conservation, Indigenous, local and scientific interests – may not have an adequate basis of power to participate effectively in conflict resolution compared to development interests.
A good example of a structural conflict and power imbalance for a public interest environmental conflict – coal seam gas developments in Queensland – was clearly identified in the observations made by ABC-TV journalist, Pip Courtney, at the Commonwealth Senate Inquiry at Roma in July 2011:
“Farmers feel that when it comes to them versus the coal seam gas companies the power resides with the gas companies. The Councils feel that the gas companies have the power. And farmers feel that when you take the environment into account that the gas companies have the power there.”
How can people power be mobilized to enable the community to be meaningfully involved in resolving conflict over the future use of the GBRWH Area? Clearly, the development sector has advantages in “financial and resources power”; this can be applied in many directions – scientific experts, environmental consultants, lawyers, media advertising, lobbyists and so on. But, what other sources of power are available to the community to offset any imbalance of power that would makes them vulnerable to the power of the development sector?
The focus of people power at the Brisbane rally was almost exclusively “knowledge power of scientific issues”: The potential adverse environmental impacts in the GBRWH Area from proposed developments. Far less attention was given to the role of the law, environmental approvals under GBRWH Area legislation and justice. There are good reasons for this.
A distinguishing feature of government today is the very wide powers it has to make environmental decisions under complex and expansive legislation created by parliament: But, issues in statutory interpretation of scientific terms and concepts in legislation arise for the decision-maker- together with difficulties the community has in understanding their rights and duties under the law.
Regulatory control and administrative decision-making for the conservation and management of the 348,000 square kilometres GBRWH Area is achieved through a maze of complex and overlapping Federal and Queensland GBRWH Area legislation – as well as diverse marine legislation.
“Knowledge power of legal rights and duties” in Federal and Queensland GBRWH Area legislation needs to be recognized as an additional source of power to complement and strengthen the community’s “knowledge power of scientific issues”. The boundaries for the relevant scientific evidence and information for decision-making are set by questions of law that are prescribed in the relevant Federal and Queensland GBRWH Area legislation.
The Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the cornerstone for decision-making to avoid inappropriate development of Australia’s World Heritage properties. Under the EPBC Act, “an action” that has, or will have, or is likely to have a significant impact on a matter of national environmental significance” requires approval from the Federal Government; the standard of proof varies across three broad alternatives, varying from the “balance of probabilities” to a “real chance”. A Ministerial decision determines whether assessment and approval is required under the EPBC Act.
Two of the nine “matters of national environmental significance” now protected under the EPBC Act are “World Heritage properties” and the “Great Barrier Reef Marine Park”. An action that has, will have, or is likely to have a significant impact on World Heritage values may take place inside – or outside – the defined boundaries of the GBR Marine Park. A potential source for a significant impact on World Heritage values may be the approval of LNG developments or proposed port developments and associated port infrastructure as raised by the UNESCO World Heritage Committee; plans of management and zoning plans made under GBR Marine Park legislation are another.
The regulatory framework under the EPBC Act prescribes the “General Principles for Management of Australian World Heritage”. Numerous and diverse elements must be evaluated as part of the decision-making process: “The primary purpose… must be, in accordance with Australia’s obligations under the World Heritage Convention, to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property” [Schedule 5, Environment Protection and Biodiversity Conservation Regulation 2000 (Cth)].
The Commonwealth’s Great Barrier Reef Marine Park Act 1975 (GBRMP Act) has three objects. The main object is to provide for the long-term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region. The statutory object extends to assist in meeting Australia’s international responsibilities in relation to the protection of world heritage, “especially Australia’s responsibilities under the World Heritage Convention” [at section 2A].
In order to achieve the objects of the GBRMP Act, the Act prescribes a number of decision-making functions for the GBRMP Authority; these include the preparation of plans of management and zoning plans [at section 2A(3)].
In doing so, the GBRMP Act requires the Authority to manage the Marine Park and to perform its other functions in accordance with the following matters: The decision-maker must act in a way that is consistent with the objects of the GBRMP Act; and the principles of ecologically sustainable use; and the protection of the world heritage values of the GBRWH Area. However, the GBRMP Act provides the decision-maker with the discretion to determine what weight they will place on each of these three prescribed matters after they have been considered [Section 7(3)].
In effect, the GBRMP Act imposes a “public duty” on the decision-maker in relation to these three prescribed matters. A public duty is simply a duty of a public body, which is prescriptive in nature that arises in public law. The primary source of public duties is legislation. Enforcement of the performance of a public duty is by way of a judicial review of the original decision.
The GBRMP Act prescribes a collaborative approach of shared responsibility for the management of the GBRWH Area between the GBRMP Authority and the Queensland Government [Section 2A(3)]. Queensland is responsible for managing the Reef and the GBR Coast Marine Park – a State marine park established under Queensland’s Marine Parks Act 2004 (MP Act) that runs the full length of the GBR Marine Park.
The GBR Coast Marine Park and Zoning Plan commenced on 5 November 2004. The GBR Coast Marine Park complements the GBR Marine Park through adopting similar zone objectives, and entry and use provisions as the Commonwealth’s legislation. While the activities that can be carried out within the GBR Coast Marine Park and GBR Marine Park are generally the same, there are some Queensland-specific provisions that may apply. One significant difference is the “Offences” provision in Queensland’s MP Act.
The MP Act has adopted the environmental harm regulatory approach of Queensland’s environmental protection legislation. “Serious environmental harm” is defined [at section 51(4)(b)] “for a marine park that is a highly protected area, an area of high conservation value or special significance—actual or potential harm to the area’s environment or use and non-use values”.
The inclusion of use and non-use values as an environmental offence is a first for Australian legislation. The MP Act defines “use and non-use values” (Schedule, Dictionary) to include: using, visiting or viewing the park’s natural/cultural resources, the park’s potential future use or benefit, the mere existence of the park’s natural/cultural resources and the use or non-use of the park’s natural/cultural resources for future generations.
What are the implications of use and non-use values for determining total liability for natural resource damage to the GBRWH area – should a human-made natural disaster causing serious environmental harm ever occur? Liability for damage to the GBRWH Area that resulted from serious environmental harm would not be restricted to clean-up costs and losses to the Queensland economy e.g. losses in tourist and fishing revenue. Extending legal liability for natural resource damage, to include use and non-use values, first arose in 1989 following a major oil spill when the supertanker, the Exxon Valdez, ran aground in Prince William Sound, Alaska.
Many Australians may not have visited the GBRWH Area, but still may derive value from knowing that a World Heritage property of such global significance was protected. Should serious environmental harm ever occur to the World Heritage values of the GBRWH Area, the loss for all Australians of “a highly protected area or an area of high conservation value” would also require an estimate of the loss in use and non-use values. The economic methodology for calculating use and non-use values exists and been applied by US Courts for assessing total liability for natural resource damages.
It should be recognized that there is also common ground between the three statutes in some additional legal obligations imposed on decision-makers – legal obligations that form the basis for achieving co-existence between competing development and environment interests in the GBRWH Area; in particular, the prescribed legal obligations for “ecological sustainability” and public participation.
The dilemma for affected community interests and development interests and the future use of the GBRWH Area is deciding on a pathway for the most effective use of knowledge power of legal rights and duties?
Litigation is one pathway. But, litigation is not a dispute resolution process; litigation through courts settles disputes. Judges settle questions of law in order to decide the ultimate issue and then impose a binding decision on the parties. Should litigation not reconcile the underlying causes of conflict for the future use of the GBRWH Area, issues in dispute may persist as a source of resentment – only to later re-emerge and lead to further conflict.
An alternative pathway is to have an effective public participation process that incorporates ADR, interest-based negotiation and consensus-building. Contemporary approaches for resolving environmental conflicts over ecological sustainability focus on joint fact-finding and problem-solving together with shared responsibility for decision-making, by affected development and environment interests. Decision-making in these circumstances facilitates trust-building with government, as power is shared to find a solution for the conflict — a solution which the parties would share in a sense of ownership.
Knowledge power of key legal rights and duties in GBRWH Area legislation, together with knowledge power of scientific evidence, is the foundation for affected environment interests to offset a potential power imbalance with development interests.
Strategic use of knowledge power to balance power between competing development and environment interests does not necessarily mean more litigation over the future use of the GBRWH Area. Rather, it acts as a pathway to facilitate effective public participation and to resolve conflict. Achieving co-existence between multiple uses in the GBRWH Area and finding ecologically sustainable solutions are its goals.
Where power is balanced, an ecologically sustainable solution ensures that environmental costs and economic benefits are not shared disproportionately between the community, industry and government.
Dr Ted Christie is an environmental lawyer, nationally accredited mediator and an environmental scientist. He specializes in alternative dispute resolution processes for finding sustainable solutions for environmental conflicts where divergent expert scientific opinion prevails. He is based in Brisbane, Queensland.