Degraded Site,Degraded Law

Convention Concerning the Protection of the World Cultural and Natural Heritage art 4 (entered into force 16 November 1972).

The comment by the Tribunal (at para 193 of the decision) that ‘Circumstances beyond the control of the current decision makers, proponent and developer have come about to create a degraded site that is thought desirable to rehabilitate in some way or other’ is simply incorrect in relation to the Great Barrier Reef Marine Park Authority. While the Authority cannot be responsible for Linkon going into receivership, the original approvals, the failure to secure rehabilitation funds and the failure to conduct any cost-benefit analysis for the project are all directly attributable to the ‘current decision-makers’.

The Authority's legal advice was clear that breakwalls could not remain attached to the mainland without effecting a change in the boundaries of the Marine Park. That change could not legally occur without a formal revocation process, which never occurred. The breakwalls needed to be freestanding islands.

See for example the Authority's comments to the Nelly Bay Harbour Public Draft EIS, 23 November 1995: ‘The Great Barrier Reef Marine Park boundary has been temporarily interrupted for construction purposes only and no permanent change is permissible’

Completion of the Development of Magnetic Quay — Nelly Bay, Expression of Interest, McIntyre and Associates, 1992.

The preferred developer, NBH, selected in 1994 was not the developer when approvals were finally granted in 1999. The Queensland State Government had become the developer and Nelly Bay Harbour the recipient of the contract for works with a guaranteed income and a guarantee from the State Government to indemnify any investors in the site.

See Whitehouse F J , Review of the Magnetic Island Marine Development (1993).

Convention for the Protection of the World Cultural and Natural Heritage art IV.

Mike Bugler, Senior Project Manager, Environmental Impact Manager, Great Barrier Reef Marine Park Authority, to Barry Holden, Townsville Port Authority, 15 January 1993 — the letter was written in response to the Johnstone report ( Johnstone L L , Picnic Bay Jetty Stage 1, Study of Improved Access for Medical Evacuation of the Disabled (1992)) and indicated that the Authority would not support an upgrade of the Picnic Bay jetty as an alternative to completion of Nelly Bay (see also under heading ‘Discussion of prudent and feasible alternatives’); see also Letter from the Authority Chair to Department of Arts, Sports, Environment and Territories, 17 September 1992: ‘as you may know the Queensland Government is actually pursuing further investors to allow the project to be completed. The Authority fully supports these actions.’

Whitehouse , above, n 7.

NQCC FOI 1998.

EPA Briefing note, December 1994.

The total cost of the Draft, Supplementary and Final EIS has never been revealed, although it is likely to be significantly higher than the original estimates.

Under the new federal environment legislation, the Environment Protection and Biodiversity Conservation Act 1999, values, such as the values of a World Heritage site, are protected to the extent that proposals that threaten those values may be required to undertake some level of impact assessment under the Act.

NQCC, submission to Great Barrier Reef Marine Park Authority (1999).

Environment Assessment Report: Nelly Bay Harbour Development, Magnetic Island NQ, May 1999, Environment Australia, Queensland Environment Protection Agency.

The AAT does not cite any legal requirement to rehabilitate the site should this development proposal lapse. Presumably, the reference is to the likely public pressure to ‘do something’ noted by Environment Australia in their EAR. Any legal argument relating to doing something would probably rest on the objects clause in s 5 of the Great Barrier Reef Marine Park Authority Act: ‘The object of this Act is to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region in accordance with the provisions of this Act.’

Australian Heritage Commission Act, s 30(2) reads in part: An authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.

See, eg, Citizen of Goleta Valley v Board of Supervisors of Santa Barbara County and Others (1990) 52 Cal. 3d 553.

In many instances in Australia, the decision-maker must only be satisfied that alternatives have been considered. In the United States, that does not suffice and an alternatives analysis is measured against comprehensive and frequently strict criteria. See, eg, guidelines under the California Environmental Quality Act.

See, eg, Final Environmental Impact Report (1999) 13–15.

See n 17.

Queensland Nickel Management Pty Ltd (formerly Dallhold Nickel Management Pty Ltd) v Great Barrier Reef Marine Park Authority (1992) 16 AAR 319; (1992) 28 ALD 368.

Hillman S , ‘The Queensland Nickel Management Appeal: A Case Study of the Appeals Process’, Great Barrier Reef Marine Park Authority, (1995) 22.

The Great Barrier Reef Marine Park Authority has recently made a submission (2002) to a Senate Inquiry in urban water issues that makes reference to at least several dozen of these staged developments and points out some of the difficulties created by current multi-jurisdictional development approval regimes.

Current proposals for a new federal Heritage Act under the Environment Protection and Biodiversity Conservation Act Act have removed the s 30 requirement.

New Heritage legislation designed to sit under the Environment Protection and Biodiversity Conservation Act has been pending now for several years. The most recent draft Bill was withdrawn during the July 2003 sittings of parliament. Whether 'prudent and feasible alternatives will be retained and in what fashion is still not known.

This history was the rationale, in part, for the Coastal Protection and Management Act (Qld), which came into effect in 1995. It remains to be seen whether the State and regional plans produced under that Act prevent the traditional problems of coastal development in Queensland.