Planning law is not property: Sea level change in Queensland

The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

The perils of individualism and our dystopian present

As a child, I read constantly and I read anything. Of note however, before I had reached secondary school I had been immersed in numerous novels about the Holocaust, had read Alvin Toffler's Future Shock and had spent a lot of time delving into Alicia Bay Laurel's glorious hand written and illustrated Living on the Earth.

Mine was a childhood vision of a dystopian present and a dangerous future for which I felt the need to prepare by knowing how to survive. This was accompanied by a deep sense of responsibility to be accountable for my own consumption. (A responsibility I admit that I have been only partially successful in fulfilling.)

Surrounded today by news of climate extremes, oil drilling in the Arctic, the real possibility of dredging in the Great Barrier Reef, expanding coal terminals on the reef, mining approvals over biodiverse regions such as the Galilee Basin's Brimblebox Reserve, move on powers over Queensland's bat colonies (and so on) the dangerous future I had envisaged has come to pass. And the dystopian present of the 1970s has taken a turn for the worse.

All of these decisions, in which each of us is complicit, arise out of a fundamental dislocation of our very self from our environment and indeed from society. Our governments however have failed to provide a cohesive narrative around these decisions, thus failing to see the inherent inconsistencies in their own positions.

How the Law Constructs the Environment: The Wandoan Coal Case

The Wandoan coal case (Xstrata v Friends of the Earth [2012] QLC 013) handed down last week shows how far our property law and environmental and resource management systems need to evolve to deal effectively with contemporary and future environmental issues.

It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).  It is not the first global environmental issue – acid rain and the pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional environmental issues.  Unfortunately, the evolution of environmental law in Australia, as elsewhere, exists still in a political era of sovereignty and control over a nation’s own territory or in the Australian context, that of a State.  The territory does not represent anything outside the context of law.  This construction of ‘the environment’ limits the law’s ability to deal with incremental and cumulative impacts of activity within a territory, on an otherwise interconnected world.

This territorial approach to the environment is compounded by the compartmentalisation of land into differential resources each with their own regulatory regime – for example, minerals, water and vegetation.  (I have written on this before.)  This further reduces the way we think about environmental impact of human activity into a variety of policy approaches, regulatory and licensing frameworks and ultimately different procedural jurisdictions.  Therefore while the environmental impact of one project may have various effects on the environment, the law may treat each aspect of the activity under a different regime.  This is an unrealistic way to understand and deal with the environment.

The law’s construction of ‘the environment’ in terms of a series of independent resources within a boundary determined by law is illustrated by the decision in the Wandoan coal case.