The Port Phillip Channel Deepening Project and ESD

I was recently published in the book Marine Resources Management, edited by Warwick Gullett, Clive Schofield and Joanna Vince. The book is available from LexisNexis Butterworths.

My chapter, ‘The Port Phillip Channel Deepening Project and environmental law: A model for ecologically sustainable development?’, inquires into the ‘sustainability’ of the Port Phillip Channel Deepening Project. I conclude:

Australia has a sustainability agenda. As a nation it wants infrastructure projects to be ecologically sustainable, and it has a national strategy that outlines the expectations and understandings of ecological sustainable development. While there are questions about whether this is a suitable benchmark for assessing controversial and large-scale developments, it is unlikely that the present paradigm will shift anytime soon. Within this strategic setting dredging will continue to be advocated to accommodate the projected increase in global sea trade and will need to be assessed against environmental laws should they apply.

The question posed by this chapter is whether dredging can be consistent with the existing sustainability paradigm. In the Port Phillip Channel Deepening Project, decision-makers and the Port claimed that it could. Although to get to this position the Port and the decision-makers traded-off and managed-away environmental impacts to preserve their desired economic outcomes. Under the policy definition of ecological sustainable development this trading-off and managing-away can only occur if the integrity of the environment is not only maintained but the ecosystem is conserved. This was not the case for the Channel Deepening Project because there was no legal regime that required the protection of the whole environment of the bay. There were no minimal requirements for protection articulated in the laws that could be balanced, let alone not traded-off or managed-away. There were no regulated limits on harm to the environment or impacts on the marine parks, no regulation for undersea disposal of toxic wastes, and no rigorous planning policy that applied to the project. While the environmental management plan was detailed, it remained a plan enforced by the Port, with its primary focus on delivering the project and realising the economic benefits. Although the Port could arguably undertake a balancing of economic, social and environmental issues as they arose, they were not equipped, nor willing, to be the defender of ecological integrity at the expense of economic development. For all the Port’s environmental goodwill, the ‘show had to go on’. The fact that the Victorian Government created a bureaucratic and unlegislated Office for Environmental Monitoring for the project showed the gaps in the regulatory system and the absence of an agency equipped to protect the bay environment

The lesson is not that the Channel Deepening Project or any other dredging proposal should not or cannot occur in an ecologically sustainable way. While this chapter is critical of the way ecological sustainable development is used in practice because it is not always consistent with policy and often prioritises economic benefits over environmental impacts, change is possible and could be straightforward. The challenge is for law-makers to establish a legal regime that sets out the protection requirements for nearshore marine areas and that prevents decision-makers deviating from those conservation requirements even when confronted with opportunities for economic gain.

Avoiding regulatory responsibility for the Great Barrier Reef

In a recent article Professor Donald Rothwell and I critique a judgment of the Australian Administrative Appeals Tribunal and discuss the consequences of uncertain marine park boundaries on the regulation of Australia’s most celebrated and threatened World Heritage Area: the Great Barrier Reef in northern Queensland. The impetus for the court case and the subject matter of the article appeared in the first instance trivial – a complaint by an island resident against a seaplane operation. However, the complaint demonstrated the failure of the existing legal structures to consider environmental effects of a marine or above water activity experienced on land. It also highlighted the ineffectiveness of government agencies to co-ordinate assessment of a proposal requiring approval in a way that ensured the requirements of various laws were met.

In our article we also analyse the law of marine boundaries in Australia and highlight deficiencies in the analysis of the tribunal and the lawyers representing the Great Barrier Reef Marine Park Authority.

The article is titled ‘The limits of the Great Barrier Reef Marine Park: Defining bays and redefining regulatory control’ and has been published in volume 37 of the Federal Law Review.