Who would the Reef vote for, if the Reef could vote?

| January 15, 2015

Protecting the Great Barrier Reef is an important issue in the upcoming Queensland elections. Kate Galloway suggests elevating the Reef’s status to that of a legal rights holder to ensure its ecological sustainability as government and public authorities are failing to do so.

The Great Barrier Reef, already in the news (including since the previous election), has again become an election issue in Queensland in the lead up to the January 31 poll. The question is whether and to what extent the next parliament and the next government will protect the Reef.

The Reef is presently a UNESCO heritage listed site. But this listing has been at risk now for some time and is presently under review. The outcome of the review will depend to a large extent on decisions made about sea dredging and land-based mining development, both of which contribute to the Reef’s destruction. Part of the challenge is that both State and Commonwealth government shares responsibility for the Reef however the question here concerns State responsibilities.

Queensland is in the Coal Business

The present Queensland Government’s position is illustrated by Premier Campbell Newman’s comments in 2012 that halting port and industry development along Queensland’s coast to protect the Great Barrier Reef is not an option.

‘We will protect the environment but we are not going to see the economic future of Queensland shut down,’ Mr Newman said. He added: ‘We are in the coal business. If you want decent hospitals, schools and police on the beat we all need to understand that.’ The challenge of course, is that promoting mining and economic concerns will not necessarily protect the Reef.

Of major concern is the plan to dump dredge spoil resulting from the port expansion at Abbot Point – to service the vast coal reserves of the Galilee Basin. The plan was originally to dump the spoil on the Reef, following approval by the Commonwealth Minister, Greg Hunt.

So controversial was the move however, that the State Government has considered an alternative dumping site to the west of the port. The Deputy Premier has said that the new proposal is a ‘positive’. ‘We will offset [the dump site] with huge enhancement of the existing wetland.’ This proposal has however raised a host of new environmental concerns, with the new site apparently the ‘worst possible site’ from an environmental perspective. The question of the environment will simply not disappear.

One good outcome from the Abbot Point dumping proposal is that following the LNP’s change of heart, the ALP has now also indicated that it will ban dumping on the Reef, requiring dredge spoil to be disposed of on land or in land reclamation. However as the LNP is now finding, land disposal is also problematic.

Environmental Sustainability?

Dredging and dumping are not all of the Reef’s concerns however. The LNP has recently passed a fairly extensive suite of amendments to the Water Act 2000 designed to support changes to the Mineral Resources Act 1989 also. The Water Act’s original purpose was for ‘the sustainable management of water and other resources…’ (emphasis added). In contrast, its new purpose is for ‘the responsible and productive management of water and the management of impacts on underground water’ (emphasis added). This shift highlights the government’s economic priority at the expense of the environment.

The companion changes to the Mineral Resources Act 1989 allow holders of mineral development licences or mining leases to ‘take or interfere with’ underground water in the area, during their authorised activities under the lease or licence.

These changes remove the principles of ecological sustainability that would be expected to underpin resource management. Certainly the Commonwealth Great Barrier Reef Marine Park Act 1975 has as one of its objects the ‘ecologically sustainable use of the Great Barrier Reef.’ In contrast, the Queensland provisions do indeed support Queensland’s bid to be ‘in the coal business’ by allowing miners unregulated access to water. And the implications for the environment, including the Reef, are not good.

So who stands for the Reef?

As might be expected, the Australian Greens have a plan to save the Reef. So it is entirely likely that if the Reef were able to vote, it would vote for the Greens. But is this really a solution? Should we leave it up to the Parliament and the government of the day to protect this incredible and important part of our world? Is there a better solution?

In 1972, American academic Christopher Stone wrote a submission for a court case seeking protection of a wilderness area. He argued that the environment itself should have standing to sue to protect itself. His submission has become an iconic book Should Trees Have Standing? – Toward Legal Rights for Natural Objects.

While the submissions were not accepted in the case, Stone’s ideas have slowly taken root. In 2008, the Ecuadorian Constitution embedded the rights of nature in its text.

…nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles.  And we – the people – have the legal authority to enforce these rights on behalf of ecosystems.

In 2012, New Zealand recognised the legal standing of the Whanganui River after over a century of campaigning by traditional owners. More recently, an Argentinian court granted non-human rights to an orang-utan in a zoo, showing how it is indeed possible for the law to recognise rights vesting in non-humans. (If you think this is impossible, consider that we give rights to companies which are, after all, non-human.)

The importance of standing for nature is that the values ostensibly upheld by environmental statutes can be enforced in the interests of the ecosystem itself, beyond the realm of politics and the vagaries of government. Without including the natural world within our laws, with standing and rights, as Peter Burdon points out in his book Earth Jurisprudence, the environment will simply continue as a resource ripe for exploitation. Our human urge to dominate and control nature – and to profit – fails to pay regard to the earth’s intrinsic worth and disregards our common future.

So if the Reef could vote… it may well vote Green. But in light of the poor protection afforded to the Reef thus far by our political system, the end game for the Reef would surely be its own status as a legal rights holder. As a holder of rights, the Reef (through its human trustees) can enforce the principles of ecological sustainability including long-term management, the precautionary principle, inter-generational equity and conservation, where our government and public authorities have failed.