Warwick Gullett

Environmental Impact Assessment and the Precautionary Principle: Legislating Caution in Environmental Protection

Anoteworthy feature of international environmental discourse since the late-1980s has been the shift toward anticipatory policies. Precaution is the leading policy approach that has emerged to guide environmental decision-makers confronted with inadequate information. The “precautionary principle” has found expression in Australia in the 1992 Intergovernmental Agreement on the Environment, various Commonwealth environmental management strategies and a number of pieces of Commonwealth and State legislation. It also has been accepted tentatively by the courts as a factor which should be taken into account in appropriate circumstances. However, existing Australian environmental management approaches fail to advance precaution in a substantive manner. Most hope for the advancement of precaution has rested on its potential to be a mandatory consideration by ministerial authorities when exercising planning powers. However, courts have cast doubt on the legal status of the principle because of the typically weak...

Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean

This article examines recent steps taken by Australia and France to combat illegal fishing in their claimed maritime zones of jurisdiction around their adjacent sub-Antarctic island territories. These steps comprise operational responses and legal developments, including the conclusion of two bilateral treaties on cooperative surveillance and enforcement. Geographical and legal problems associated with addressing the illegal fishing threat in the Southern Ocean are highlighted. It is concluded that when they come to be tested by international legal authorities, some of the more innovative legal measures under discussion are likely to be appraised as being in conflict with some provisions of the United Nations Convention on the Law of the Sea.

Up the creek and out at sea: the resurfacing of the public right to fish

Abstract The ancient common law public right to fish has had increasing resonance since 2001 when the High Court in Yarmirr denied the existence of asserted exclusive offshore native title rights in large part because of the ‘fundamental inconsistency’ between them and the public right to fish. The Yarmirr decision also established that non-exclusive offshore native title rights must be consistent with the public right. This creates the potential for litigation where it is asserted that actions of native title holders have infringed the public right or where recreational anglers purportedly exercising the public right in an area subject to a native title determination stray beyond the limits of the right. The public right to fish also continues despite exclusive indigenous ownership rights over the foreshore (to the low water mark) where ownership rights exist under legislative land grants. Far from being a matter of mere historical curiosity, the public right to fish has resurfaced with prominence with respect to its intersection with indigenous fishing rights. Further, far from being regulated out of existence, in some jurisdictions the public right to fish has been enshrined in legislation. In New South Wales it has even been extended to nontidal rivers and creeks. This paper examines the content of the public right to fish and assesses its enduring significance in light of Yarmirr and post-Yarmirr offshore native title determinations. It argues that the confusion surrounding the interaction between public and indigenous fishing rights may necessitate Parliamentary action to allocate access rights vis-è-vis public and indigenous fishers.

Incorporating fisheries interests in National Oceans Policymaking

The principal aim of national oceans policymaking is to identify and assess all current and future uses of ocean spaces and resources in order to facilitate the making of effective management arrangements for them. There are a myriad of actual and potential uses of the oceans. They can lead to a range of potentially conflicting interests across different sectors. This means that it is a daunting and politically fraught task to integrate management of all ocean uses. Fisheries is a key sector that must feature in any effective national oceans policy. This is because fishing is the most intensive use of marine space and resources and the fishing industry is a key contributor to many national economies. A challenge for the incorporation of fisheries interests in national oceans policymaking is that fisheries is a diverse sector. In addition to commercial fishing, it includes recreational fishing and, in some countries, indigenous and subsistence fishing. Fishing also has an international and regional dimension and it overlaps with aquaculture. This article identifies the range of fisheries interests and considers how they are incorporated into national oceans policymaking, focusing on Australia and Canada.

The threshold test of the precautionary principle in Australian courts and tribunals: lessons for judicial review.

This challenging book takes a broad and thought-provoking look at the precautionary principle and its implementation, or potential implementation, in a number of fields. In particular, it explores the challenges faced by public decision-making processes when applying the precautionary principle, including its role in risk management and risk assessment. Frameworks for improved decision-making are considered, followed by a detailed analysis of prospective applications of the precautionary principle in a number of emerging fields including: nanotechnology, climate change, natural resource management and public health policy. The analysis is both coherent and interdisciplinary, employing perspectives from law, the social sciences and public policy with a view to improving both the legitimacy and effectiveness of public policy at national and international levels.

International Regulation on Low-Carbon Shipping for Climate Change Mitigation: Development, Challenges, and Prospects

ABSTRACT This article outlines the contribution of international shipping to climate change and examines different approaches to regulate international shipping activities to reduce greenhouse gas (GHG) emissions. It considers challenges such as the allocation of GHG emissions to individual states, the selection of the most effective mitigation and regulatory measures, the potential for a disproportionate burden to fall upon developing states, and the debate about whether the United Nations (UN) or the International Maritime Organization (IMO) is the appropriate international authority to regulate emissions from international shipping.

Reconciliation in the Timor Sea: Progress by Australia and Timor Leste towards Amicable Development of Offshore Resources

Australia and Timor Leste’s relationship has been bedevilled by disagreement about rights to lucrative hydrocarbon resources lying beneath the seabed of the Timor Sea and a complicated and at times a painful history with Indonesia. This article reviews these circumstances, the progress that has been made to settle resource rights in overlapping claimed areas of the Timor Sea, and the international proceedings that have been taken by Timor Leste against Australia. It is concluded that the key outstanding issue – where, exactly, the seabed boundary between Australia and Timor Leste should be located – will not be resolved in these proceedings but that progress towards amicable development of offshore resources will rest on good faith negotiations, cooperation and sound understanding of laws and principles for maritime boundary delimitation.