A LEGAL PERSONALITY FOR THE GREAT BARRIER REEF
THE GREAT AUSTRALIAN CONSTRUCTION
HOW THIS WILL WORK
On 20 February 2014 (the United Nations World Day of Access to Social Justice), the Environmental Defenders Office of Northern Queensland (EDO NQ) commenced the process of gaining legal personality for the Great Barrier Reef World Heritage Area, Australia.
Many Australians, and UNESCO, are increasingly concerned about the environmental health of the Great Barrier Reef World Heritage Area” See our infographics here to gain insight into why the Great Barrier Reef needs better environmental management. . These concerns have been fueled by statements from Queensland’s Premier and Deputy Premier such as:
“The problem for Queensland is the entire Queensland Coast pretty much is impacted by those World Heritage issues” (ABC News, ‘Fears development will be at cost to Queensland’s environment’, 14 May 2012) ; and
“Sometimes I think the whole Great Barrier Reef thing is overdone”.
Increasingly, the Queensland community is being cut off from access to justice. Amendments to, and new, legislation seek to remove appeal rights, or the right to seek judicial review of a decision which is unreasonable or wrong in law. The ability of the community to challenge government decisions that impact on the environment has been further limited by the withdrawal of 100% of Federal government funding for all nine Environmental Defenders Offices in Australia.
Federal assessment and approval powers are being devolved down to a State Government with little genuine interest in protection of the Great Barrier Reef.
In short, the ‘system’ is failing the Great Barrier Reef. And, while it is an Australian ‘system’, it is arguable that the Great Barrier Reef World Heritage Area is managed by the Australian Government under a form of trust for all the peoples of the world, including future generations.
The problem is – if members of the community are increasingly denied access to the courts to seek a remedy if the Great Barrier Reef World Heritage Area is under threat (and this trend appears to be continuing at both Federal and State levels of government), where does the Reef go for justice? Currently, it has no legal personality, and hence no independent right to seek justice before the relevant courts. It has no ‘standing’ to appear before relevant courts, even if others have raised a matter concerning it.
Giving the Great Barrier Reef World Heritage Area legal personality will mean that whenever it is threatened with material harm, it can take action to protect itself – whether from industry or indifferent governments.
What does this mean?
For 99% of Australians, the grant of legal personality to the GBR will make no difference to how they enjoy and interact with the Reef. Legal personality is not an end-point in itself. We call this ‘The Great Australian Construction’ – a construction not of bricks and mortar, but of imagination and morals - a construction that all Australians can be truly proud of.
EDO NQ will call on interested parties with a genuine interest in the environmental protection of the Great Barrier Reef World Heritage Area to form a Working Party. The principal task of this Working Party will be to put flesh onto the bones of a Bill which will eventually be put before the Australian people, who will (hopefully, if government agrees) vote by plebiscite as to whether or not they concur that the Bill should become law, and that the Great Barrier Reef World Heritage Area should be granted legal personality with the attendant rights enshrined in the Bill.
It is important to recognize that granting the Great Barrier Reef World Heritage Area legal personality does not give it absolute protection. What it does do is give it a strengthened capacity to defend itself when placed in peril, either through cumulative environmental effects, mismanagement/failure to manage, or major environmental insult.
Having a mechanism to appoint unimpeachably trustworthy international and Australian trustees to act on behalf of the World Heritage Area is central to the success of this model.
How will it work?
The Environmental Defenders Office of Northern Queensland is simply a catalyst and facilitator for this process. The success of the project relies on the cooperative input from multiple parties.
The first step is putting this question on the dinner tables of every Australian household: Why should a non-living corporation, with the principal object of making a profit for its shareholders, be granted legal personality, when the world’s largest living structure (which has no selfish agenda) – should not?”.
A corporation is a non-living thing. A construct. And yet we grant it rights as though it were a living person. It can own property. It can seek justice in the courts. On this day – the World Day of Access to Social Justice, we believe that it is time for the Great Barrier Reef to be granted real access to justice.
It is not such a big step to alter people's attitudes so that a living thing can also be granted legal personality, and have the right to defend itself - particularly given the increasing threat to the world from climate change, pollution and inappropriate development. In fact, in South America, India, and New Zealand, there is an increasing surge of support for such an approach, and the New Zealand government has agreed to grant both the Whanganui River, and Te Urewera National Park, legal personality. In the latter case, trustees will act on the river's behalf, protecting it from harm. The river will have rights, and will be able to sue the Government of New Zealand, or others who might take action to harm it.
The steps involved in achieving legal personality for the Great Barrier Reef World Heritage Area include:
1. All Australians taking a minute or two to visit www.change.org and signing the petition supporting a plebiscite dealing with the granting of legal personality for the GBR;
2. Formation of the Working Party;
3. Preparation of a draft Bill;
4. Submission of the petition for a plebiscite to Parliament;
5. Providing there is sufficient support, the approval of the plebiscite;
6. The plebiscite (vote) itself;
7. Providing that there is sufficient support, transfer of the draft Bill to Parliamentary Counsel for final drafting; and then -
As this project progresses, further information will be posted on this web site, and those interested in the topic can return here for information.
EDO NQ calls on major environment and conservation groups, international bodies, University academics, and other parties who feel that they can concretely contribute to the work of the Working Party to register their interest by contacting us.