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Baxterm, Tom --- "Legal Protection for the Great Barrier Reef World Heritage Area" [2006] MqJlICEnvLaw 3; (2006) 3(1) Macquarie Journal of International and Comparative Environmental Law 67

Legal Protection for the Great Barrier Reef World Heritage Area

TOM BAXTER[∗]

I INTRODUCTION

The Great Barrier Reef (‘GBR’) is a vast region of immense natural value, rich in biodiversity at ecosystem, community, species and genetic levels. Its many interconnected bioregions stretch across coastal estuaries, mangroves, seagrass beds, fringing coastal reefs, islands and lagoons to outer coral reefs bordering Australia’s continental shelf.[1]

The GBR has traditionally benefited from low population density along most of its coastline, certainly in comparison to most other internationally significant coral reef systems. As sea country,[2] the GBR remains integral to the traditions and ongoing cultures of Aboriginal and Torres Strait Islander communities who have made sustainable use of the reef, its islands and coast for thousands of years.[3]

In addition to its ecological and cultural values, the GBR is a vital economic asset, primarily as one of Australia's premier tourist destinations. It also supports shipping, fishing and various other industries.

The GBR’s unique natural values deserve protection in their own right. They are also fundamental to maintaining the GBR’s rich cultural and social values and to ensuring both the ecological and economic sustainability of its dependent industries.

Yet the GBR, like reefs around the planet, faces growing pressure from many sources. The impacts of modern economic activity upon the GBR have become increasingly evident, threatening the viability of the reef’s ecosystems and many of its cultural, social and economic values. Climate change threatens the survival of coral reefs worldwide, including the GBR.[4] Fishing,[5] shipping,[6] tourism[7] and declining water quality (including from agriculture, aquaculture and coastal development)[8] are some of the other significant threats impacting particularly on inner areas of the GBR.

The GBR’s wealth of biodiversity and other natural values are acknowledged globally, including through the reef’s listing as both the planet’s largest World Heritage Area and the first Particularly Sensitive Sea Area. This article outlines the GBR’s legislative framework by reference to the key biodiversity conservation obligations Australia undertook by pursuing these listings in relation to the GBR.

The article then describes the national legislative instruments are used to implement these international legal responsibilities. These include national statutes providing for regulations, zoning plans and plans of management. The regulatory mix contained therein includes, inter alia, criminal offences punishable by maximum fines of $A1.1million, a permitting scheme including third party merits appeal rights and economic instruments such as the Environmental Management Charge.

Finally, the making of the award-winning Great Barrier Reef Marine Park Zoning Plan 2003 (Cth), which commenced on 1 July 2004, is considered. The culmination of exhaustive scientific study, socio-economic analysis and community consultation, the new zoning plan has, inter alia, increased ‘no-take’ zones from roughly 4.5% to one-third of the Great Barrier Reef Marine Park, providing a major opportunity for significant biodiversity conservation.

II LEGISLATIVE FRAMEWORK

Essential for protection of the GBR’s natural, social and economic values is a comprehensive legal regime and compliance with it. The GBR’s legislative framework comprises international, national and Queensland State law. Discussion follows of some key aspects of the most important international conventions under which the GBR is listed as a protected area. Consideration is then given to an Australian Federal legislation governing management of the GBR.[9]

A International Environmental Law

The GBR is the planet’s largest World Heritage Area and was the first designated Particularly Sensitive Sea Area. As such, noteworthy amongst the many conventions imposing international legal obligations upon Australia to protect the GBR and its biodiversity are the Convention concerning the Protection of the World Cultural and Natural Heritage, 1972 (‘WHC’),[10] the International Convention for the Prevention of Pollution from Ships, 1973 (‘MARPOL’)[11] and the United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’).[12]

Subsequent instruments such as the United Nations Framework Convention on Climate Change, 1992[13] and the Convention on Biological Diversity, 1992 (‘CBD’)[14] are also relevant (although beyond the scope of this paper), particularly the CBD’s requirement that Contracting Parties establish a system of protected areas where special measures need to be taken to conserve biological diversity[15] and develop guidelines for the selection, establishment and management of such areas.[16]

1 World Heritage Area

Following nomination by Australia and acceptance by the World Heritage Committee, the GBR was inscribed on the World Heritage List in October 1981.[17] The Great Barrier Reef World Heritage Area (GBRWHA) matches the area (nearly 350,000km2) described in Schedule 1 of the Great Barrier Reef Marine Park Act 1975 (Cth),[18] including islands and internal waters of the State of Queensland. The northwest corner of the GBRWHA is the point that, at low water, is the northernmost extremity of Cape York Peninsula. Its western boundary then runs south over 2,000km along the coastline of Queensland at low water to the parallel of Latitude 24º 30´.

Under the WHC, each State Party, inter alia:

recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage [of outstanding universal value] situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.[19]

States Parties are also required to take

appropriate legal, scientific, technical, administrative and financial measure necessary for the … conservation, presentation and rehabilitation of this heritage.[20]

The text of the WHC contains fifteen references to ‘international assistance’, emphasising the centrality of global co-operation and partnerships to the protection of world heritage. Partnerships are a key focus of Australia’s management of the GBRWHA.[21] However, world heritage management by Australian governments of areas such as the GRWHA is not without domestic critics.[22]

Climate change is one of the areas where Australia’s compliance with its WHC obligations has been questioned, particularly in the context of the GBR. Global warming poses a significant threat to coral reefs worldwide, including the GBR, as corals subjected to increased water temperatures during summer bleach then, with sufficient temperature or sustained exposure, die.[23] As the Sydney Centre for International and Global Law notes, ‘In 1998, 75% of the world’s reefs were affected by coral bleaching, and 16% died’.[24] Australian Government scientific agencies report:

The waters of the Great Barrier Reef are warming and are predicted to continue to do so at an accelerating rate throughout the 21st Century. The increasing temperatures will lead to increased levels of coral bleaching, coral mortality and biodiversity depletion that could have serious consequences for the Reef’s biodiversity, ecology, appearance and dependent recreational use and economic activity.[25]

Australian greenhouse gas emissions per capita are the highest of any industrial country and more than double the average for industrial countries.[26] Australia is a party to the United Nations Framework Convention on Climate Change.[27] However, despite securing an extremely favourable deal at COP3 in December 1997 (enabling it to meet its Kyoto target without substantial reductions in industrial sector emissions)[28] and signing the Kyoto Protocol[29] on 29 April 1998,[30] Australia has indicated that it does not intend to ratify the Protocol.[31]

While most Australian States desire ratification of the Kyoto Protocol, the Queensland Government, in an unfortunate example of cooperative federalism,[32] apparently does not. As a former Federal Opposition leader has written of the Queensland Premier:

He’s super-sensitive about the coal industry, but it’s crazy in terms of Queensland’s long-term interests. Global warming is killing the Great Barrier Reef, the State’s main economic and environmental resource, and Beattie won’t support Kyoto to do something about it. … Now he’s rough-riding over the Reef, watching it die because of coral bleaching.[33]

The Australian and Queensland Governments have also vigorously opposed legal challenges to their approvals of major projects likely to impact on the GBR, such as dams[34] and coal mines.[35]

While some State Governments have adopted greenhouse gas abatement programs, Australian measures currently in place do not approach the ‘deep cuts’ required for such a wealthy nation as Australia, to ‘do all it can … to the utmost of its own resources’ to ensure ‘protection, conservation, presentation and transmission to future generations of the cultural and natural heritage’[36] of the GBRWHA.

The Sydney Centre for International and Global Law argues that, given the GBRWHA’s sensitivity to global warming, satisfying the provisions of the WHC set out above (to say nothing of Australia’s other international legal obligations) requires Australia to:

Moreover, arguably these WHC obligations, as applied in respect of the GBRWHA and other World Heritage properties sensitive to climate change,

require the Australian Government both to encourage all States Parties to reduce their greenhouse gas emissions beyond their current commitments and to assist Annex II parties to the [Framework Convention] to pursue substantial reductions in their greenhouse gas emissions.[38]

Other States Parties to the WHC also have obligations in respect of world heritage outside their jurisdiction. Whilst fully respecting State sovereignty, States Parties:

Given these obligations, the Sydney Centre for International and Global Law argues convincingly that, in light of the evidence that

anthropogenic greenhouse gas emissions are a major cause of climate change which is leading to coral bleaching of the Great Barrier Reef … States Parties to the World Heritage Convention must endeavour, both individually and in co-operation with other States Parties, to ensure that emissions of greenhouse gases and other pollutants are controlled so as to minimise the potential deterioration of the GBRWHA.[42]

2 Particularly Sensitive Sea Area

In 1990, following Australia’s submission, the International Maritime Organization (‘IMO’) designated the GBR the world’s first Particularly Sensitive Sea Area (‘PSSA’).[43] A PSSA is an area needing special protection through action by the IMO due to its significance for ecological, socio-economic, or scientific reasons and which may be vulnerable to damage by international shipping.[44]

PSSAs have their legal basis in UNCLOS which provides that, where areas require special protection from vessel sourced pollution, States Parties may submit to the IMO for its approval proposals for special mandatory measures within their exclusive economic zones (‘EEZ’).[45]

As Nelson notes, UNCLOS

… creates an overall structure for the protection and preservation of the marine environment and a general obligation for States to implement and elaborate upon this structure through both global conventions addressing particular forms of pollution and regional agreements tailored to the requirements of discrete sea areas.[46]

When an area is approved as a PSSA, specific measures (termed Associated Protective Measures) can be used to control maritime activities in the area. Such measures may include routeing measures, ship reporting systems, strict application of MARPOL discharge and equipment requirements for ships and installation of Vessel Traffic Services.[47]

UNCLOS and MARPOL are both founded on international co-operation, in particular through the auspices of the IMO. Requirements of these conventions support various Australian statutes, particularly the suite of Protection of the Sea Acts.[48] Furthermore, these conventions and the GBR’s PSSA designation find reflection in provisions of the GBRMP Act discussed below regulating the discharge of waste[49] and compulsory pilotage.[50]

B National Legislation

1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’)

The EPBC Act is Australia’s principal legislation governing world heritage, Ramsar wetlands, nationally listed threatened species, Commonwealth areas (including Commonwealth marine areas) and other ‘matters of national environmental significance’. Its objects include, inter alia:

The EPBC Act relies heavily on ‘co-operative federalism’ in that matters not considered of ‘national environmental significance’ are left to State legislation. Even actions having a significant impact on matters of national environmental significance may be assessed and, potentially, approved under State processes following bilateral agreements between the national and State governments. The Act requires public notification of, and enables public comment on, proposed actions and reduces some of the barriers to public interest litigation that would otherwise restrict civil enforcement of its provisions.

The EPBC Act applies to an ‘action’ that has, will have or is ‘likely to have’ a ‘significant impact’ upon a matter of national environmental significance, such as the world heritage values of a declared World Heritage property[54] (eg, the GBRWHA). However, where such an action is taken in the Great Barrier Reef Marine Park (‘GBRMP’) and is authorised by an instrument made under the GBRMP Act, the EPBC Act largely defers to the former Act.[55] Nevertheless, the EPBC Act has an increasingly important role in relation to actions likely to significantly impact upon the values of the GBRWHA, particularly such actions taken outside the boundaries of the GBRMP.[56]

2 Great Barrier Reef Marine Park Act 1975 (Cth) (‘GBRMP Act’)

The GBRMP Act established both the GBRMP and the Great Barrier Reef Marine Park Authority (‘GBRMPA’),[57] which is responsible for the management of the GBRMP.[58] Pre-dating the GBR’s world heritage listing, the GBRMP Act still contains only one express reference to world heritage,[59] though the Act provides that it has effect subject to the obligations of Australia under international law, including international agreements, [60] eg, the WHC.

The GBRMP Act applies command and control prohibitions to certain activities inappropriate on the GBR, including criminal offences punishable by fines of up to $A1.1 million. Beyond that, the Act enables the making a variety of legislative instruments (eg, zoning plans, regulations and plans of management), which allows differential regulation of activity types across areas of the GBRMP. The regulatory mix includes offences, an environmental management charge, and a permitting regime that includes liability instruments, performance bonds, a public register of permissions and both judicial review and merits appeal rights for proponents and third parties.

(a) Great Barrier Reef Marine Park Authority (the GBRMPA)

The GBRMP Act establishes the GBRMPA as a body corporate directed by four members: a full-time Chairperson and three part-time members.[61] The Act requires that one of the part-time members be appointed to represent the interests of Aboriginal communities adjacent to the Marine Park,[62] and one be appointed on the nomination of the Queensland Government.[63] The Act also establishes the Great Barrier Reef Consultative Committee, a Ministerially-appointed advisory committee to which the GBRMPA provides secretarial support.[64] In addition, the GBRMPA supports the activities of numerous Local Marine Advisory Committees (LMACs) along the North Queensland coast and other issue-specific advisory committees.

Staff of the GBRMPA are mainly Australian Government public servants. They work closely with other national and Queensland government agencies, particularly in compliance and enforcement. The GBRMP Act acknowledges this[65] and makes specific provision for other partnerships, enabling the GBRMPA (whether acting by itself or in co-operation with other institutions and persons) to provide assistance to other institutions or persons in matters relating to environmental management.[66]


(b) Regulation of Industry in the GBRMP

Operations for the recovery of minerals in the GBRMP have been prohibited since the GBRMP Act commenced.[67] Activities such as negligent shipping,[68] the discharge of waste,[69] and illegal fishing[70] now carry the strictest penalties with criminal offences punishable by fines of up to $A220,000 for natural persons or $A1.1 million for corporations.

Following the IMO’s designation of the GBR as the world’s first PSSA, compulsory pilotage provisions were inserted into the GBRMP Act in 1991. Regulated ships can only be navigated in the compulsory pilotage area by an independent pilot, licensed or registered under Australian law, who is on board the vessel with conduct of it. Non-compliance renders the master, owner and operator of the ship each guilty of a strict liability offence punishable by a maximum fine of $A55,000 for an individual ship master and $A275,000 for corporate owners and operators.[71]

Negligent operation of a vessel in the GBRMP that results, or is likely to result, in damage to the GBRMP, renders the operator liable to a maximum penalty of $A220,000 for an individual, or $A1.1 million for a corporation.[72] Even without negligence, a vessel operation that results, or is likely to result, in damage to the GBRMP, renders the operator and owner of the vessel each guilty of a strict liability offence punishable by a maximum fine of $A55,000 for an individual ship master and $A275,000 for corporate owners and operators.[73]

The unauthorised discharge of waste in the GBRMP is an offence punishable by a maximum penalty of $A220,000 for an individual, or $A1.1 million for a corporation.[74] The GBRMPA may grant permission, subject to conditions, for certain discharges (eg sewage from land-based outfall) under the Great Barrier Reef Marine Park Regulations 1983 (Cth).

Discharges are also subject to the Environmental Management Charge (EMC) administered by and payable to the GBRMPA. The EMC is levied on discharges at a volumetric rate, calculated using formulae weighted to account for the level of pre-discharge treatment (eg secondary or tertiary). This application of the polluter pays principle provides economic incentives for land-based operators to go beyond mere compliance with their permit conditions to improve treatment levels and reduce the volume they discharge into the GBRMP. Arguably, the rate of EMC now requires review to provide sufficient incentive for investment in upgrading waste treatment facilities, particularly given contemporary community standards as to what constitutes reasonable discharge into the waters of the GBRMP.

Discharges from aquaculture operations up to 5km inland of the GBRMP coast are regulated by permitting requirements imposed by the specific Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 (Cth), in conjunction with requirements of the EPBC Act.

Tourism operations using the GBRMP are also regulated through a permitting regime. Permits are granted subject to conditions under the Great Barrier Reef Marine Park Regulations 1983 (Cth), in accordance with requirements imposed by area-specific plans of management. Permit conditions may require an operator to enter a deed of agreement with the GBRMPA, maintain adequate insurance and post a bank guarantee or other form of performance bond.[75] Tourism operations also pay the Environmental Management Charge, based on their quarterly visitor numbers, which is remitted to the GBRMPA and thereby contributes to the costs of managing the GBRMP.

Fisheries management, including licensing, is primarily the responsibility of Queensland agencies under legislation such as the Fisheries Act 1994 (Qld). The GBRMP Act’s main requirement of fishers is compliance with zoning plans, which detail types of fishing allowed in various zones of the GBRMP. Non-compliance is an offence punishable by fines of up to a maximum penalty of $A220,000 for an individual, or $A1.1 million for a corporation.[76] Given the difficulty of catching line-fishing vessels ‘red-handed’ in the act of fishing, certain conduct is prohibited without requiring proof of fishing. For example, a tender commercial fishing vessel caught in a non-fishing area of the Marine Park without lawful excuse, even if not fishing, renders the fisher, master of the primary vessel and license holder all guilty of a strict liability offence.[77] This sends liability ‘up the chain of command’ to include those who would otherwise profit from such illegal activity.

III The GBRMP Rezoning

Historically, biodiversity conservation on the GBR, particularly the placement of ‘no-take’ zones, focussed on iconic coral reefs and remote areas. More recent times, however, have seen greater recognition of the necessity to properly protect all habitat types. Top-level scientific advice, based on enhanced understanding of both ecosystem processes and the environmental degradation caused by fishing (particularly in the form of trawling, but also other forms such as line-fishing), showed previous zoning to be manifestly inadequate to protect comprehensive, adequate and representative areas of the GBR’s many and varied bioregions. The GBRMPA’s Representative Areas Program involved years of detailed scientific study, socio-economic analysis, extensive education, community consultation and public participation, including analysis of some 31,500 public submissions.[78] The rezoning process and the resulting Great Barrier Reef Marine Park Zoning Plan 2003 (Cth) (which came into effect on 1 July 2004) have now been widely acclaimed through numerous awards.[79] Three key outcomes of the rezoning are summarised below.

A Significant Expansion of No-take Zoning

The new zoning plan has, inter alia, increased the proportion of ‘no-take’ (‘green’ marine national park) zones from 4.5% to over 33% (114,530km2) of the GBRMP. Given the evidence of serious ecological impacts caused by certain fishing practices, this substantial increase in the area of no-take zones, where fishing and other extractive uses are prohibited, was required to enable long-term biodiversity conservation.

In addition to scientific, community and stakeholder views, other factors relevant in planning the rezoning included compliance and enforcement. In some regions, existing no-take zones have been expanded and/or joined together in ways designed to better facilitate enforcement: for example, fishing is no longer permitted as close to many protected reefs as was previously the case. Some other regions have no-take zones for the first time. Increasing the total protected area through larger, rather than merely more numerous, no-take zones was a fundamental biophysical principle, identified by expert scientific panels as necessary to protect the integrity of ecosystems, which also aids enforcement.

While the rezoning has prohibited further fishing in substantial areas, its ongoing effects on fishing effort, take and impacts require rigorous monitoring and assessment. Many challenges remain, not least managing compliance with, and pursuing rigorous enforcement of, the new zoning regime, necessary to ensure that the GBRMP is much more than a ‘paper park’.

B Coordinate-based Zoning

The rezoning process also addressed a long-standing problem inherent in the definition of boundaries in previous zoning plans. When zoning was originally introduced, the exact location of many reefs was yet to be charted accurately. Therefore, the previous plans had typically described zone boundaries as extending 500 metres from the seaward edge of a ‘reef’, which was defined to include ‘bommie fields, reef slopes, moats and ramparts’ (extensions of a reef which are generally underwater).[80] Such zonal boundaries were difficult to define on the water and complicated both compliance by fishers and enforcement of offences at the margins of no-take zones.

The new zoning plan defines zone boundaries by coordinates of latitude and longitude. This acknowledges that most commercial vessels and surveillance platforms are equipped with electronic navigation aids, particularly geographic positioning systems (‘GPS’). Boundaries of some zones in coastal areas popular with recreational users (some of whom may lack electronic navigation aids) have, where possible, now been aligned by reference to appropriate features such as visible headlands and river mouths.

Before the new zoning plan commenced, the GBRMPA produced some 378,000 hard copy zoning maps. The GBRMPA also released, on CD and on its website, GPS co-ordinates and co-ordinate based maps for all no-take zones in the GBRMP.[81]

C Economics Overcame Opposition

Through measures such as those outlined above, the GBRMPA went to great lengths to design and implement a rezoning program so as to achieve biodiversity bottom lines while minimising social and economic impacts on stakeholders, including local fishing communities. Nevertheless, organised fishers are a powerful lobbying force. Despite education campaigns, wide ranging community consultation up and down the Queensland coast, and both informal and formal processes for public participation, significant opposition to aspects of the rezoning came, and continues to come, from some fishing organisations and influential members of government.

During the rezoning program, Australia’s Productivity Commission undertook an extensive analysis of the economic value and employment characteristics of industries within the GBR catchment. Its report,[82] which provided much useful data, valued the economic worth of tourism in the GBR catchment during financial year 1999-00 at $A4,269 million, of which the Great Barrier Reef Marine Park Authority estimated some $A1,400 million annually as directly attributable to the marine tourism industry.[83]

Table One: Economic value of select GBR industries 1999-2000[84]

Industry
Gross value of production
($A million)
Employed Persons
(Total No.)
Aquaculture
38
378
Commercial fishing
119
641
Seafood processing
33
180
Recreational fishing
240
Na
Tourism
4,269
47,660

This report clearly demonstrated, from an authoritative source, that tourism far exceeds, in terms of both economic value and employment, any other single industry using the GBR catchment. The report also quantified the economic value and employment derived from GBR fishing. The Productivity Commission commented, inter alia:

Fisheries (aquaculture, and commercial and recreational fishing) are among the smaller industries shown in table 4.4. Expenditure by recreational fishers of the GBR lagoon and catchment ($240 million) was estimated to exceed the GVP of both commercial fishing and aquaculture combined ($157 million). In contrast, Fenton and Marshall[85] estimated the GVP by commercial fishing vessels from GBR ports at more than double the [Queensland Fisheries Service] estimate shown in table 4.4. However, there are significant problems with the methodology used by Fenton and Marshall (see appendix E for details).[86]

While tourism has environmental impacts, the impacts of fishing on the GBR are grossly disproportionate to both its economic and employment value. Economic data and support for the rezoning from outside the fishing sector, including public support from organisations such as the Association of Marine Park Tourism Operators, provided important countervailing pressure to fishing industry opposition to the rezoning.

IV Conclusion

Under international instruments, the planet’s largest World Heritage Area and first Particularly Sensitive Sea Area enjoys the most stringent legal protection afforded to any marine protected area. Furthermore, the GBR benefits from its remote location solely within the national jurisdiction of Australia, a wealthy nation well endowed with expertise in marine biology and associated sciences. Accordingly, international law places particularly onerous obligations on Australia, including to ‘do all it can, to the utmost of its own resources’, to ensure ‘… protection, conservation, presentation and transmission to future generations of the cultural and natural heritage …’[87] of the GBRWHA.

The GBR is a vital ecological and economic asset which nature has equipped better than most reef systems to confront the challenges of coral bleaching in a warming world. However, to date Australia has failed to take adequate measures, internationally and in relation to its own excessive greenhouse gas emissions, to discharge its WHC obligations. Particularly relevant here is Australia’s WHC duty to ‘do all it can, to the utmost of its own resources’,[88] to protect the GBR, including from the impacts of climate change

Australian domestic implementation of its biodiversity conservation obligations with respect to the GBR is undertaken through national legislation and, to a lesser extent, Queensland State law. Such a federal regime is fitting for the governance of the GBR, the coral reef foundations of which are built upon relationships of symbiosis.

Partnerships were also essential to the success of the extensive Representative Areas Program, culminating in the commencement on 1 July 2004 of the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth). Without the GBRMPA’s significant investment in education, community consultation and public participation, combined with economic analysis and the support of stakeholders, including the tourism industry, it is unlikely that expansion of no-take zones from 4.5% to 33.3% of the GBRMP the would have been politically achievable in the face of some significant opposition. It is to be hoped that these efforts will pay dividends in entrenching ongoing popular (and hence political) support for the new zoning regime, thereby enabling its potential biodiversity conservation gains to be fully achieved.


[∗] BEc/LLB (Hons) University of Tasmania, LLM Australian National University; Barrister and Solicitor of the Supreme Court of Tasmania and the High Court of Australia; Lecturer in Commercial Law, School of Accounting and Corporate Governance, University of Tasmania; formerly Legal Officer, Great Barrier Reef Marine Park Authority. The author gratefully thanks referees of this journal for helpful comments on an earlier version of the article.

[1] See eg, J E Bowen and M J Bowen, The Great Barrier Reef: History, Science, Heritage (2002).

[2] D B Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness (1996) 7 notes the significance of ‘country’ for Indigenous Australians.

[3] See, eg, D Smyth, ‘Management of Sea Country: Indigenous People’s Use and Management of Marine Environments’ in R Baker, J Davies and E Young (eds), Working on Country: Contemporary Indigenous Management of Australia’s Land and Coastal Regions (2001) 60-74; D Smyth, ‘The Indigenous Sector: An Anthropological Perspective’ in T Hundloe (ed), Valuing Fisheries: An Economic Framework (2002) 221-250; P Havemann, D Thiriet, H Marsh and C Jones, ‘Traditional Use of Marine Resource Agreements and Dugong Hunting in the Great Barrier Reef World Heritage Area’ 22 Environmental Planning and Law Journal (2005) 258.

[4] L Hughes, ‘Climate change and Australia: Trends, Projections and Impacts’ (2003) 28 Austral Ecology 423, 429 <http://www.edo.org.au/edonsw/site/pdf/climate%20change %20review.pdf> 10 April 2006.

[5] GBRMPA, Fisheries in the Great Barrier Reef (GBR) Marine Park, <http://www.gbrmpa.gov.au/corp_site/key_issues/fisheries/index.html> 10 April 2006.

[6] GBRMPA, Shipping, <http://www.gbrmpa.gov.au/corp_site/key_issues/water_quality/ shipping.html > 10 April 2006.

[7] GBRMPA, Tourism and Recreation <http://www.gbrmpa.gov.au/corp_site/key_issues/ tourism/index.html> 10 April 2006.

[8] GBRMPA, Water Quality and Coastal Development, <http://www.gbrmpa.gov.au/corp_site/ key_issues/water_quality/index.html> 10 April 2006.

[9] For further detail, including relevant Queensland legislation, see Great Barrier Reef Marine Park Authority (GBRMPA), Legislation <http://www.gbrmpa.gov.au/corp_site/about_gbrmpa/ legislation_regulations.html> 10 April 2006 and C McGrath, Synopsis of the Queensland Environmental Legal System (3rd ed, 2004).

[10] Convention concerning the Protection of World Cultural and Natural Heritage, opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358 (entered into force 15 December 1975).

[11] International Convention for the Prevention of Pollution from Ships, opened for signature 2 November 1973, 1340 UNTS 184, 12 ILM 1319 (entered into force 2 October 1983).

[12] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3, 21 ILM 1261 (entered into force 16 November 1994).

[13] United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994) (‘Framework Convention’).

[14] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79, 31 ILM 818 (entered into force 29 December 1993).

[15] Ibid art 8(a).

[16] Ibid art 8(b).

[17] Pursuant to the WHC, opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358, art 11 (entered into force 15 December 1975). Report of the Rapporteur, World Heritage Committee, Fifth Session, Sydney 26-30 October 1981, UN Doc cc-81/CONF/003/6.

[18] Great Barrier Reef Marine Park Act 1975 (Cth) hereinafter referred to as the ‘GBRMP Act’.

[19] WHC, opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358, art 4 (entered into force 15 December 1975).

[20] Ibid art 5(d).

[21] GBRMPA, Protecting the Great Barrier Reef World Heritage Area (2002) <http://www.gbrmpa.gov.au/corp_site/info_services/publications/brochures/protecting_biodiversity/> 10 April 2006; GBRMPA, The Great Barrier Reef World Heritage Area: Framework for management (2002) <http://www.gbrmpa.gov.au/corp_site/info_services/publications/ brochures/protecting_biodiversity/gbrwha_management_framework.pdf> 10 April 2006.

[22] See, eg, D Haigh, ‘World Heritage – Principle and Practice: A Case for Change’ (2000) 17 Environment and Planning Law Journal 199; D Haigh, ‘Australian World Heritage, the Constitution and International Law’ (2005) 22 Environment and Planning Law Journal 385.

[23] See eg, Hughes, above n 4, 429 and Great Barrier Reef Marine Park Authority (GBRMPA), ‘Coral Bleaching and Mass Bleaching Events’ <http://www.gbrmpa.gov.au/corp_site/info_ services/science/climate_change/coral_bleaching.html> 10 April 2006. In the specific context of the GBR see eg, Hughes, above n 4, 436-437; D R Rothwell, Global Climate Change and the Great Barrier Reef: Australia’s Obligations under the World Heritage Convention (2004) Sydney Centre for International and Global Law [8-15] <http://www.law.usyd.edu.au/scigl> 10 April 2004; and GBRMPA, ‘Climate change and the Great Barrier Reef’ <http://www.gbrmpa.gov.au/corp_site/info_services/science/climate_change/> 10 April 2006.

[24] Rothwell, above n 23, [9] citing United Nations Environment Programme, Key Facts About Seas and Oceans, 5 June 2004 <http://www.unep.org/wed/2004/Downloads/PDFs/ Key _Facts_E.pdf> 10 April 2006.

[25] T Done et al, Global Climate Change and Coral Bleaching on the Great Barrier Reef (Final Report to the State of Queensland Greenhouse Taskforce through the Department of Natural Resources and Mines, ‘Executive Summary’ 2, CSIRO, Australian Institute for Marine Science and CRC Reef Research Centre July 2003) <http://www.nrm.qld.gov.au/science/pdf/ barrier_reef_report_1.pdf> (10 April 2006) in Rothwell, above n 23, [14].

[26] H Turton, Greenhouse Gas Emissions in Industrialised Countries: Where does Australia Stand? (Discussion Paper No 66, The Australia Institute, 2004) vi, 7.

[27] Framework Convention, opened for signature 9 May 1992, 1771 UNTS 107, 31 ILM 849, (entered into force 21 March 1994).

[28] Rothwell, above n 23 [71].

[29] Kyoto, 11 December 1997 (1998) 37 ILM 22 (entered into force 16 February 2005).

[30] Rothwell, above n 23, [57].

[31] See, eg, Commonwealth of Australia, Securing Australia’s Energy Future (2004) 139 in Rothwell, above n 23 [22].

[32] Federal arrangements for intergovernmental management of the GBR were examined by G L Sturgess, The Great Barrier Reef Partnership: Cooperation in the Management of a World Heritage Area (1999).

[33] M Latham, The Latham Diaries (2005) 318.

[34] See, eg, Minister for the Environment and Heritage v Queensland Conservation Council [2004] FCAFC 190; (2004) 139 FCR 24, discussed in C McGrath, ‘Minister Reconsiders Nathan Dam Impacts’ [2005] (1) National Environmental Law Review 20 and C McGrath, ‘Avoid the Legal Pitfalls in the EPBC Act by Understanding its Key Concepts’ [2005] (3) National Environmental Law Review 32, 37-40.

[35] See C McGrath, ‘Greenhouse Emissions Case Update’ [2005] (3) National Environmental Law Review 19 summarising Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage & Ors (decision reserved); S Lucy, ‘The Battle for “Climate Justice”’ (2005) 16(9) WME Environment Business Magazine, 19, 19.

[36] WHC opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358, art 4 (entered into force 15 December 1975).

[37] Rothwell, above n 23, [76 ff].

[38] Ibid [77].

[39] WHC, opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358, art 6(1) (entered into force 15 December 1975).

[40] Ibid art 6(2).

[41] Ibid art 6(3).

[42] Rothwell, above n 23, [86].

[43] P Ottesen, S Sparkes and C Trinder, ‘Shipping Threats and Protection of the Great Barrier Reef Marine Park: The Role of the Particularly Sensitive Sea Area Concept’ (paper presented at the Third Meeting of Legal Experts on Particularly Sensitive Sea Areas, Texel, The Netherlands, 1-3 June 1994); D R Lawrence, R A Kenchington and S Woodley, The Great Barrier Reef: Finding the Right Balance (2002) 194; P Nelson, ‘Protecting Areas That Are Vulnerable to Damage by Maritime Activities: The Reality of Particularly Sensitive Sea Areas’ [2003] MarStudies 22; (2003) 131 Maritime Studies 20, 20.

[44] International Maritime Organization, Guidelines for the Designation of Special Areas under MARPOL73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, Assembly Resolution A.927(22), (2001).

[45] UNCLOS, opened for signature 10 December 1982, 1833 UNTS 3, 21 ILM 1261, art 211(6)(a) (entered into force 16 November 1994); Nelson, above n 43, 21.

[46] Nelson, above n 43, 21.

[47] Nelson, above n 43, 24.

[48] Protection of the Sea (Civil Liability) Act 1981 (Cth); Protection of the Sea (Prevention of Pollution for Ships) Act 1983 (Cth); Protection of the Sea (Powers of Intervention) Act 1981 (Cth); Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 (Cth) and related taxing Acts; Protection of the Sea (Shipping Levy Collection) Act 1981 (Cth); Protection of the Sea (Shipping Levy) Act 1981 (Cth).

[49] GBRMP Act s 38J.

[50] GBRMP Act Part VIIA.

[51] EPBC Act s 3(1)(d).

[52] EPBC Act s 3(1)(e).

[53] EPBC Act s 3(2)(g).

[54] EPBC Act ss 12-15A. C McGrath, ‘Avoid the Legal Pitfalls in the EPBC Act by Understanding its Key Concepts’ [2005] (3) National Environmental Law Review 32 explains the meaning of ‘action’, ‘likely to have’ and ‘significant impact’, along with other key terms and concepts in the EPBC Act.

[55] EPBC Act s 43.

[56] Above n 33.

[57] GBRMP Act Parts II and III.

[58] GBRMP Act s 7(1B).

[59] GBRMP Act s 39Z.

[60] GBRMP Act s 65(2).

[61] GBRMP Act s 10(1) and (2).

[62] GBRMP Act s 10(1)(b).

[63] GBRMP Act s 10(3) and (4).

[64] GBRMP Act Part IV.

[65] GBRMP Act s 42.

[66] GBRMP Act s 7A.

[67] GBRMP Act s 38.

[68] GBRMP Act s 38MC(1).

[69] GBRMP Act s 38J.

[70] GBRMP Act ss 38CA, 38 CB and 38CC.

[71] GBRMP Act ss 3 and 59B.

[72] GBRMP Act s 38MC(1).

[73] GBRMP Act ss 38MC(2) and (3).

[74] GBRMP Act s 38J.

[75] As regards use of such instruments in the GBRMP, see P Lal and D Brown, ‘Using Performance Bonds as an Environmental Management Tool: The Great Barrier Reef Marine Park Authority’s Experience’ (1996) 3 Australian Journal of Environmental Management 86.

[76] GBRMP Act ss 38CA, 38CB and 38CC.

[77] Great Barrier Reef Marine Park Regulations 1983 (Cth) r 41.

[78] B Jago et al, ‘Bringing the Great Barrier Reef Marine Park zoning into the 21st century: an overview of the Representative Areas Program’ (paper presented at the Coast to Coast 6th National Conference, Hobart, Australia, 19-23 April 2004).

[79] See eg, awards documented by GBRMPA, ‘Banksia Award Recognises New Zoning Plan’, Media Release, 7 June 2004 <http://www.gbrmpa.gov.au/corp_site/info_services/media/

2004/2004-06-07.html> 10 April 2006; GBRMPA, ‘Award for Reef Rezoning’, Media Release, 20 April 2005 <http://www.gbrmpa.gov.au/corp_site/info_services/media/2005/2005-04-20.html> 10 April 2006.

[80] See, eg, the definition of ‘reef’ in GRMPA Act s 38J(7).

[81] GBRMPA, ‘New Zoning Co-ordinates Available Online’, Media Release, 18 May 2004 <http://www.gbrmpa.gov.au/corp_site/info_services/media/2004/2004-05-18.html> 10 April 2006.

[82] Productivity Commission, Industries in the Great Barrier Reef Catchment and Measures to Address Declining Water Quality, Commissioned Report with Terms of Reference (2003) http://www.pc.gov.au/study/gbr/finalreport/index.html> 10 April 2006.

[83] GBRMPA, Annual Report 2002-2003 (2003) <http://www.gbrmpa.gov.au/corp_site/ info_services/publications/annual_reports/AR2002-2003.pdf> 10 April 2006.

[84] Extracted from Productivity Commission, above n 82, Table 4.4 ‘Economic importance of industries in the GBR catchment’ 1999-00 (notes omitted).

[85] D M Fenton and N A Marshall, A Guide to the Fishers of Queensland, Part A: TRC-Analysis and Social Profiles of Queensland’s Commercial Fishing Industry (CRC Reef Research Centre Technical Report No. 36, 2001) <http://www.reef.crc.org.au/research/fish/commercial.html> 10 April 2006.

[86] Productivity Commission, above n 82, 74.

[87] WHC, opened for signature 23 November 1972, 1037 UNTS 151, 27 UST 37, 11 ILM 1358, art 4 (entered into force 15 December 1975).

[88] Ibid.


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