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Great Barrier Reef Case – Lima

International Rights of Nature Tribunal
Lima, Peru – December 2014

Introduction of Case

Erin Fitz-Henry, University of Melbourne
Presenting for the Australian Earth Laws Alliance

Authority of Person

My name is Dr Erin Fitz-Henry, I am a lecturer in social and cultural anthropology at the University of Melbourne, in Victoria, Australia. Today I am representing the Australian Earth Laws Alliance (AELA), the Australian civil society organisation that has brought this case to the Tribunal.

I am a member of the Australian Earth Laws Alliance and have worked closely with the Governing Board to prepare this case and speak for the Great Barrier Reef. I was also a contributor to AELA’s publication in April this year, an edited collection called ‘Wild Law in Practice’, published by international publishing house, Routledge.

I would like to acknowledge the ongoing work of AELA’s National Convenor, Michelle Maloney, who presented this case to the Tribunal in Ecuador and who sends her apologies. She was not able to attend to the Lima Hearing.

Overview

The Australian Earth Laws Alliance (AELA) is seeking a ruling and declaration regarding the Rights of the Great Barrier Reef (GBR or ‘the Reef’). We presented the GBR Case to the International Tribunal in Ecuador in January this year. The case was admitted for this final hearing in Lima. We refer to the submission made to the initial hearing of this case with the Tribunal in Ecuador.

We have held a Regional Tribunal Hearing in Australia, to gather the most recent information about the status of the Great Barrier Reef for the International Tribunal and to provide recommendations from a local panel of judges. This Regional Tribunal was held in Brisbane, Queensland, Australia on 15 October 2014. Expert evidence from this Regional Tribunal will be shown via video footage today, for the Tribunal’s information.

We are seeking recommendations from the International Tribunal, regarding violations of the rights of the Great Barrier Reef. We submit to the Tribunal that the Rights of Mother Earth are being violated, because the Great Barrier Reef’s very existence is under threat. We contend that relevant Government Authorities in Australia – the Queensland State Government and the Australian Federal Government – who have primary legal responsibility for the Reef, are not exercising their obligations to protect the Reef.

Facts

ABOUT THE REEF

The Great Barrier Reef (GBR) is the world’s largest coral reef system. It is the world’s biggest single structure made by living organisms and can be seen from outerspace. It runs for 2,300 kilometres, from the Torres Strait Islands, at the most northern tip of Australia, south to Bundaberg along the coastline of the Australian state of Queensland. It is comprised of 3000 individual reef systems and coral cays and almost 900 beautiful tropical islands. It supports a vast array of marine creatures, including 1625 species of fish, 600 types of soft and hard corals, more than 100 species of jellyfish, 133 varieties of sharks and rays, more than 30 species of whales and dolphins and 3,000 species of molluscs. The GBR is also unique as it extends over 14 degrees of latitude, from shallow estuarine areas to deep oceanic waters.

The Great Barrier Reef was listed by Australia as a National Park in 1975 and covers 344,400 km in area. It was listed as a UNESCO World Heritage Property of Value in 1981. Until very recently, it was considered a pristine natural ecosystem. It is a major tourist destination for international and Australian visitors, and in the year ending December 2012, 1.99 million tourist visitor days were calculated. This tourism brings $AU3 billion into the Australian economy every year.

In June 2011, UNESCO issued, for the very first time, a warning to the Australian government that the GBR was under threat of significant damage from the escalation of coal port expansions and other industrial developments along the coastline adjacent to the reef. UNESCO warned that if the planned developments continued, the GBR might have to be named on the ‘World Heritage in Danger’ list. The expansion of new and existing coal ports on the coastline (used to ship coal from Australia to other countries) is seriously threatening the health of the reef – so too are the increases in shipping volume and activities such as dredging and especially sediment from agricultural runoff. Tropical cyclones, coral predation by crown-of-thorns starfish (COTS), and coral bleaching accounted for 48%, 42%, and 10% of the respective estimated losses of coral over the years 1985 to 2012.[1]

THE THREATS FACED BY THE REEF

In simple terms, the Reef faces both existing and imminent threats, as follows:

  • Existing land based marine pollution.
    • The Reef has been deteriorating over the past few decades, due to land based pollution from human activities. However until recently, the Reef’s status as a World Heritage Site has not been in question.
    • The sources of the existing pollution damaging the Reef are primarily agricultural practices (eg sugar cane farming) on land adjacent to the reef, as well as increasing nutrients from residential developments. Human created pollution is also responsible for stimulating an increase in the population growth of the Crown of Thorns Starfish (COTS), which is destroying the Reef at unprecedented levels. These COTS are a natural phenomenon – the starfish eat coral – but human created pollution stimulates ideal conditions for these destructive creatures to destroy the reef at an unprecedented rate.
  • Imminent threats from the escalation of coal mining, coal ports and industrial developments on land adjacent to the reef. While these existing causes of damage to the Reef are bad enough, they are now being combined with other, even more devastating threats, to the health of the Reef. In Queensland, a number of MEGA COAL MINES have been approved byt the Queensland Government, as well as new COAL PORTS on the land adjacent to the Reef. These developments will see a massive increase in industrial developments, dredging of the sea bed next to the Reef and pollution of the Reef and waterways, as well as a significant increase in carbon pollution that will in turn contribute to climate change and the ongoing bleaching and destruction of the Reef.

Responsible Parties

The primary parties responsible for allowing the current and proposed/future damage to the Reef are the Queensland Government and the Australian Federal Government.

The Queensland State Government is the party that gives permission to all private parties to carry out coal mining, dredging, coal port development and agricultural activities. Our submission to the Tribunal lists all the private parties that will be responsible for building new coal mines and coal ports. These parties need to be held responsible for their actions too – but it’s the Government that has primary responsibility for allowing the developments to take place.

What we’re asking of the Tribunal

The Universal Declaration for the Rights of Mother Earth[1] states that Mother Earth and all beings of which she is composed have inherent rights, including the right to “regenerate its bio-capacity and to continue its vital cycles and processes, free from human disruptions”[2]. It also states that the rights of each being are limited by the rights of other beings and any conflict between their rights must be resolved in a way that maintains the integrity, balance and health of Mother Earth[3].

This case will demonstrate that human activities are disrupting the Great Barrier Reef’s ability to continue its vital cycles and processes, and argues that the Queensland and Australian governments (i) must be held to account for allowing the volume of industrial development that is now occurring on the Queensland coast and threatening the Reef and (ii) must set limits on human developments and ensure the Great Barrier Reef can continue its vital cycles and processes and continue its evolutionary journey.

Evidence – footage from the Regional Chamber

I would now like to introduce video footage from the Regional Chamber of the Tribunal, held in Brisbane on 15 October.

  • First – we will provide an overview of scientific evidence of the threats facing the reef, from marine ecologist, Dr Glen Holmes, of the University of Queensland. This will also include his responses to questions from the Judges on the Regional Chamber.
  • Second – we will provide an overview of the economic and political issues in Australia that are contributing to the destruction of the Great Barrier Reef, provided by Senator Larissa Waters, Federal Member of Australian Parliament.
  • Third – we provide a statement on behalf of the ‘victim’, the Great Barrier Reef – by Michelle Maloney, National Convenor, Australian Earth Laws Alliance.
  • Fourth – we provide a statement from indigenous community leader, Sam Watson.
  • Fifthly and finally, we submit the findings of the Regional Chamber of the Tribunal.

Conclusions and recommendations

When deliberating its final decision about this case, AELA urges the International Tribunal to note a critical point made by marine ecologist Dr Glen Holmes at the Regional Tribunal in Brisbane, when he was questioned about the resilience of the Reef and whether any of the damage to the Reef can be reversed:

“The Great Barrier Reef is a strong ecosystem. It has the ability to recover from major disturbances, given the opportunity. If we were to address catchment run-off and address climate change, then there is the potential for the Reef to recover. Climate change is tricky, because there’s a big lag time involved. Even if we completely stopped our drivers of climate change, we would still see increasing impacts due to climate change. But with the removal of other pressures – water quality, fishing pressures, loss of coastal habitats for example – that would increase the Reef’s resilience to be able to handle the continuing pressures of climate change. So if we could address those impacts now and reduce those stressors, then the evidence that I’ve seen suggests that yes, the Reef would be more resilient and would be more likely to survive the continuing impacts of climate change.”

This is cause for great hope – but it means that we MUST stop all the activities that threaten this important member of the Earth Community.

Consequently, the Australian Earth Laws Alliance asks the Tribunal to find the following:

  • To declare that the rights of the Great Barrier Reef are being violated
  • To declare that the Queensland Government and Australian Federal Government must immediately:
    • Cease all new coal mine developments in Queensland;
    • Cease all new coal port, sea dredging and other destructive industrial developments on the Queensland coast, in order to protect the Great Barrier Reef;
    • In particular – cease all coal port developments and sea dredging at Abbott Point;
    • Comply with the recommendations made by the World Heritage Committee;
    • Invest in programs that assist Queenslanders, and all Australians, to reduce existing land based marine pollution and rebuild the resilience of the Great Barrier Reef

 

[1] De’ath G, Fabricius KE, Sweatman H, Puotinen M. 2012. “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. PNAS 109(44) 17995-17999 http://www.pnas.org/content/early/2012/09/25/1208909109

[2] A copy of the Universal Declaration for the Rights of Mother Earth can be found here: http://pwccc.wordpress.com/programa/ last accessed 8 April 2014

[3] Universal Declaration for the Rights of Mother Earth, Clause 2(c)

[4] Universal Declaration for the Rights of Mother Earth, Clause 1.7

The Great Barrier Reef Case

International Tribunal for the Rights of Nature

Lima, Peru, 5-6 December 2014

INTRODUCTION

The Australian Earth Laws Alliance submits the Great Barrier Reef case to the International Tribunal for the Rights of Nature, for a final hearing and recommendations.

We refer to our submission made for the initial hearing of this case with the Tribunal in Ecuador in January 2014.

We have held a Regional Tribunal Hearing in Australia, to gather the most recent information about the status of the Great Barrier Reef for the International Tribunal and to provide recommendations from a local panel of judges. This Regional Tribunal was held in Brisbane, Queensland, Australia on 15 October 2014. Expert evidence from this Regional Tribunal will be shown via video footage, for the Tribunal’s information.

We are seeking recommendations from the International Tribunal, regarding violations of the rights of the Great Barrier Reef. We submit to the Tribunal that the Rights of Mother Earth are being violated, because the Great Barrier Reef’s very existence is under threat. We contend that relevant Government Authorities in Australia – the Queensland State Government and the Australian Federal Government – who have primary legal responsibility for the Reef, are not exercising their obligations to protect the Reef.

OVERVIEW

  1. Summary of Claims

The Universal Declaration for the Rights of Mother Earth[1] states that Mother Earth and all beings of which she is composed have inherent rights, including the right to “regenerate its bio-capacity and to continue its vital cycles and processes, free from human disruptions”[2]. It also states that the rights of each being are limited by the rights of other beings and any conflict between their rights must be resolved in a way that maintains the integrity, balance and health of Mother Earth[3]. This case will demonstrate that human activities are disrupting the Great Barrier Reef’s ability to continue its vital cycles and processes, and argues that the Queensland and Australian governments (i) must be held to account for allowing the volume of industrial development that is now occurring on the Queensland coast and threatening the Reef and (ii) must set limits on human developments and ensure the Great Barrier Reef can continue its vital cycles and processes and continue its evolutionary journey.

[1] A copy of the Universal Declaration for the Rights of Mother Earth can be found here: http://pwccc.wordpress.com/programa/ last accessed 8 April 2014

[2] Universal Declaration for the Rights of Mother Earth, Clause 2(c)

[3] Universal Declaration for the Rights of Mother Earth, Clause 1.7

  1. Case facts

Overview of the Reef and its Special Status

The Great Barrier Reef (GBR) is the world’s largest coral reef system. It is the world’s biggest single structure made by living organisms and can be seen from outerspace. It runs for 2,300 kilometres, from the Torres Strait Islands, at the most northern tip of Australia, south to Bundaberg along the coastline of the Australian state of Queensland. It is comprised of 3000 individual reef systems and coral cays and almost 900 beautiful tropical islands. It supports a vast array of marine creatures, including 1625 species of fish, 600 types of soft and hard corals, more than 100 species of jellyfish, 133 varieties of sharks and rays, more than 30 species of whales and dolphins and 3,000 species of molluscs. The GBR is also unique as it extends over 14 degrees of latitude, from shallow estuarine areas to deep oceanic waters.

The Great Barrier Reef was listed by Australia as a National Park in 1975 and covers 344,400 km in area. It was listed as a UNESCO World Heritage Property of Value in 1981. Until very recently, it was considered a pristine natural ecosystem. It is a major tourist destination for international and Australian visitors, and in the year ending December 2012, 1.99 million tourist visitor days were calculated. This tourism brings $AU3 billion into the Australian economy every year.

In June 2011, UNESCO issued, for the very first time, a warning to the Australian government that the GBR was under threat of significant damage from the escalation of coal port expansions and other industrial developments along the coastline adjacent to the reef. UNESCO warned that if the planned developments continued, the GBR might have to be named on the ‘World Heritage in Danger’ list. The expansion of new and existing coal ports on the coastline (used to ship coal from Australia to other countries) is seriously threatening the health of the reef – so too are the increases in shipping volume and activities such as dredging and especially sediment from agricultural runoff. Tropical cyclones, coral predation by crown-of-thorns starfish (COTS), and coral bleaching accounted for 48%, 42%, and 10% of the respective estimated losses of coral over the years 1985 to 2012.[1]

Australia is a Constitutional Monarchy, with a Federal system of government. It has one national or Federal Government, called the Australian Government. The Federation is made up of 6 States and 11 Territories (2 of these Territories are on the mainland, the remainder are smaller islands within Australia’s jurisdiction). Two levels of government are responsible for the management of the Great Barrier Reef, and for approving the developments that are projected to destroy the reef – the Australian Government and the State Government of Queensland.

[1] De’ath G, Fabricius KE, Sweatman H, Puotinen M. 2012. “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. PNAS 109(44) 17995-17999 http://www.pnas.org/content/early/2012/09/25/1208909109

 

Chronology of events leading to increased threats to the Great Barrier Reef

In March 2012 UNESCO/IUCN launched a monitoring mission to the GBR and at the World Heritage Commission’s annual meeting in June 2012, it noted “with great concern the potentially significant impact on the property’s Outstanding Universal Value resulting from the unprecedented scale of coastal development currently being proposed within and affecting the GBR”. A report was issued which listed 14 recommendations for the Australian government, to ensure the long term health and good management of the GBR. These recommendations are set out in the section below.

In February 2013, two Australian environmental non-government organisations (NGOs), WWF Australia and the Australian Marine Conservation Society (ACMS) prepared a third party report on the state of the reef and the government responses to UNESCO. The report is called “Status of Implementation of Recommendations in World Heritage Committee Decision 36 COM 7B.8, Great Barrier Reef (Australia) and the March 2012 Reactive Monitoring Mission”[1]. This report noted that all of the new coal mines, coal ports and dredging projects were still scheduled to proceed – neither the Australian nor State Government had taken action to stop these new developments.

In addition, a detailed report was prepared by a public interest environmental law centre called the Environmental Defenders Office Qld (EDO QLD), documenting the extensive legislative and policy changes implemented by the State Government of Queensland. They noted that these legislative changes primarily focused on removing environmental protections in existing legislation and that “none of the legislative changes amounted to increased protection for the GBR”[2].

In early 2013, the Federal Government responded to UNESCO with a very positive report, claiming that the Great Barrier Reef would continue to be managed well, despite the escalation of coal mining, coal ports, dredging and other activities. They did not indicate that any of the developments would be halted or stopped to protect the GBR.

[1] This report can be found at: http://awsassets.wwf.org.au/downloads/mo030_fight_for_the_reef_report_to_the_unesco_world_heritage_committee_1feb13.pdf – last accessed 13 January 2014

[2] WWF Australia & the Australian Marine Conservation Society Report to UNESCO World Heritage Committee –http://awsassets.wwf.org.au/downloads/mo030_fight_for_the_reef_report_to_the_unesco_world_heritage_committee_1feb13.pdf , Legal Advice, Appendix 4.

The increasing pressures from coal mining and coal port development

Australia has a long history of mining coal and other minerals. Coal mining began in the 1830s.
In the 1960s, the volume of coal extraction in Queensland began to increase. In the 1990s, a large number of new coal mine permits were issued, and this has meant coal extraction has more than doubled from 50.8 MEGA TONNES (ie 50.8 million tonnes of coal) per annum (Mtpa) in 1985-1986 to 124 Mtpa by 2000 and 200mtpa by 2013.

Today, there are 4 existing coal ports along the Queensland coast, in the cities of Gladstone, Bowen, Mackay and Brisbane. Today, 1 new coal port and 3 port expansions are proposed. The proposed new coal port is at Port Alma; the 3 ports to be expanded are Abbot Point, Hay Point and Gladstone. Please see Table 1 below for details about the coal ports, the tonnage of coal that moves through the ports each year and what the proposed increases are.

Please note: two additional coal ports had previously been proposed, but these have been cancelled indefinitely as the major investors withdrew from the projects. BHP recently pulled out of Abbot Point T2 (Bowen, $5bn, 60mtpa export) and Xstrata-Glencore pulled out of Balaclava Island (Fitzroy Delta)

Table 1 – Coal Ports on the Queensland Coast – current and proposed

Coal PortCurrent Capacity (MT moved through the port each year)Actual usage 2012-13Planned Capacity (MT pa)
Abbot Point5017.7250
Hay Point

  • Hay Point Coal Terminal
  • Dalrymple Bay Coal terminal
  • Proposed: Dudgeon Point
12944 (HPCT) 85 (DBCT)96.534.1 (HPCT)62.4 (DBCT)32075 (HPCT)85 (DBCT)

180 (DP)

Gladstone8357.2240
Port Alma32
Total262171.4842


Sources for Table 1:
http://apo.org.au/files/Research/CPD_Too_Many_Ports-2013.pdf, Appendix 1 and Qld govt: http://mines.industry.qld.gov.au/assets/coal-stats/12-month-reports/coal-stats-fin-year-2012-2013.xlsx

The new coal ports are going to be built in order to receive and export coal produced by several proposed ‘mega-mines’ in Queensland. These mines are as follows: Alpha Coal, 30mtpa

  • Alpha Coal, 30mtpa
  • Kevin’s Corner, 30mtpa
  • China First, 40mtpa
  • Carmichael Coal Mine, 60mtpa
  • China Stone, 60mtpa

Note: the impact of these massive new coal mines on greenhouse gas emissions will be devastating. The international non-government organization called “350.org” estimates that extraction and use of the coal in all of Queensland would be “roughly equivalent to releasing 30% of the world’s carbon budget between now and two degrees”. This figure is widely debated, and depends on the extent of coal developments permitted, but nonetheless, this group and many others are running campaigns to “keep Queensland’s coal in the ground”.[1]

[1] Bill McKibben, 350.org, quoted in Sydney Morning Herald – “Climate campaigner warns of burning need to keep coal in the ground”,   http://www.smh.com.au/environment/climate-change/climate-campaigner-warns-of-burning-need-to-keep-coal-in-the-ground-20130603-2nm3z.html – last accessed 13 January 2014

  1. Damage determination

Impact on Nature:

During 2012 a number of important scientific and technical reports were released that provided updated understanding of the status of the GBR World Heritage Area and the present and future threats. [1]

These reports emphasise an alarming decline in the Reef’s coral cover, continuing serious concerns about the status of key inshore habitats and species, and significant loss and degradation of coastal ecosystems critical to the health of the reef.  They note that most of the damage and imminent threats to the reef are taking place in the ‘southern’ part of the Great Barrier Reef, south of Cooktown.

The causes of this decline in the coral reef’s health are listed as follows:

  • land based marine pollution and run off (eg from agricultural practices such as sugar cane farming and urban settlements);
  • impacts of the crown of thorn star fish (COTS). COTS are a naturally occurring predator which eats coral and destroys it at a rapid rate. Human created pollution in the waters of the reef create ideal conditions for the COTS to flourish and increase their destruction of coral;
  • coral bleaching and ocean acidification from climate change impacts and
  • the unprecedented expansion along the GBR coastline of of coastal ports and industrial development accompanied by a projected near doubling in shipping, major coastal reclamation works and massive seabed dredging and dredge spoil disposal – all either immediately adjacent to, or within the World Heritage Area.

Earlier this year, the ‘Great Barrier Reef 2014 Outlook Report’ was published, and it also highlighted the current threats to the health of the Reef.[2]   This report highlights that no improvements have been achieved in the health of the reef since the last Outlook Report in 2009.

[1] One of these reports is De’ath G, Fabricius KE, Sweatman H, Puotinen M. (2012). “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. Proceedings of the National Academy of Sciences of the United States of America. Available at http://www.pnas.org/content/109/44/17995.full

[2] Australian Government, Great Barrier Reef Marine Park Authority, (2014) Great Barrier Reef 2014 Outlook Report, 2014. Report available at http://www.gbrmpa.gov.au/cdn/2014/GBRMPA-Outlook-Report-2014

Impact on people/communities

More than 50 indigenous Aboriginal communities are connected to the ‘sea country’ of the Great Barrier Reef. These communities have lived harmoniously with the Great Barrier Reef for millennia. After European colonization of Queensland, many indigenous groups have been deprived of access to their land and sea country, and legal and moral issues surrounding indigenous recognition and rights continue to be ignored, or poorly addressed, in Queensland. In his judgment at the Regional Chamber of the Tribunal for the Rights of Nature, indigenous community leader Sam Watson pointed out that because the Reef has become ‘sick’, so too, many indigenous elders are sick. He recommended that a special Tribunal Hearing be organized which focuses solely on hearing from the perspective of indigenous peoples regarding the state of the Great Barrier Reef.

The tragic deterioration of the Reef and its adjacent waters causes problems for non-indigenous communities as well. One coastal community is currently acutely affected by pollution and health problems arising from an existing coal port and related seabed dredging activities. This township is called Gladstone. Environmental and community groups have expressed grave concern about water quality in the Gladstone Harbour, and documented impacts include: reports of painful skin rashes from people fishing and exposed to water in the Harbour, sick and dead fish and sick, injured and dead dolphins and sea turtles.

People in communities where new or expanded coal ports are planned are very concerned about the impacts of the developments on their beautiful natural environment (harbours, bays, islands, marine life, coastal health), human health and economic benefits of tourism. The following townships have very active resistance to proposed coal ports – Yeppoon/Keppel Bay, near Port Alma, Louisa Creek near Dudgeon Point (where coal dust is an existing problem) and resistance is growing in Airlie Beach near Abbot Point and Mackay.

Evaluation of future damage/impact

If the proposed coal port expansions takes place, and the resulting increases in shipping traffic, dredging and dumping and airborne coal dust pollution, it is predicted that many parts of the southern Great Barrier Reef will be impacted and there will be significant coral die off, loss of marine life and interference with the complex interactions in the ecosystem that will have ongoing negative impacts on the thousands of interdependent life forms who call the reef “home”. It will also decrease tourism income in the affected and adjacent areas.

In his expert testimony at the Regional Chamber of the Tribunal, held in Brisbane, Queensland, Australia on 15 October 2014, marine ecologist Dr Glen Holmes (University of Queensland) stated that port and industry development ‘amplifies the impacts of poor water quality that is coming into the reef’ from land based activities. He further stated that ‘failure to properly manage and regulate port and industrial developments, as well as the continuing impacts of agricultural run-off and poor catchment water quality, will lead to a decreased resilience of the Great Barrier Reef ecosystem.

This decreased resilience leaves it open to even greater impacts from climate change and other disturbances. This will ironically lead to a loss of ecosystem services that the Reef provides to us.”[1]

[1] This quote is taken from Dr Glen Holmes’ expert testimony at the Regional Chamber of the International Tribunal for the Rights of Nature, held in Brisbane 15 October, available on Youtube

Identification of responsible parties

As noted previously in this submission, two levels of government are responsible for the management of the Great Barrier Reef, and for approving the developments that are projected to destroy the reef – the Australian Government and the State Government of Queensland.

The coal mines and coal port developments are funded by private coal mining companies and joint ventures, and are sanctioned and subsidized by the Queensland and Australian governments.

Government involvement

State Governments are responsible for approving coal mine developments and coal port developments under the Mineral Resources Act 1989, the Environmental Protection Act 1994 and the State Development and Public Works Organisation Act 1971. The Queensland State government has primary responsibility, but the Federal government also plays a role. It has final approval and has the power to block developments with major impacts on the grounds that the GBR is protected under Fed legislation/World Heritage legislation. The governments are not making a sufficient effort to regulate land-based pollution that affects the reef or to stop damaging coastal dredging and marine dumping.[1]

[1] For example, in decision EPBC 2011/6213 on 10 December 2013 the Federal Minister for the Environment approved dredging at Abbot Point and dumping in the Great Barrier Reef Marine Park.

Private Parties

There are a number of private companies who are investing in new coal mines in Queensland. All of these companies must be pressured into ceasing their mining of coal and contributing to the devastation of climate change, as well as contributing to the death of the Great Barrier Reef.

Please see Appendix 2 for a list of those private companies.

  1. Efforts in Australia to Protect the Reef

Civil Society Groups Fighting to Save the Great Barrier Reef

Two large environmental groups in Australia have forged a powerful alliance to advocate for the Great Barrier Reef. These groups are the Australian Marine Conservation Society (AMCS) and the World Wide Fund for Nature (Australia). A combined effort, under the banner ‘Save the Reef’ is having some success in swaying public opinion in Australia and overseas that the developments threatening the Reef must be stopped.

Role of Australian courts

Several court challenges have been launched by civil society groups to stop proposed coal mines from being approved, See Appendix 3.

Civil society groups, and the public interest environmental law centre previously mentioned, the EDO Qld, are working very hard to use the existing law to stop destructive coal mines and sea dumping that will affect the Reef. However at present, none of these cases are stopping the port or coal mining developments, which is what we need to stop if we’re to save the Reef.

  1. The rights of the Reef

As this Tribunal aims to protect the rights of nature, this case submits that in this Tribunal, we should be allowed to break out of the narrow legalistic discourse that has been created by western culture, and to truly attempt to speak for the Reef, and present the case from its point of view. To make an attempt to speak for the Reef, AELA submits the statement made my Michelle Maloney, AELA Convenor, at the initial hearing of this case in Quito, Ecuador, on 17 January. Ms Maloney said the following:

I am not a traditional custodian of the Reef and I pay my deepest respects to all traditional custodians in Australia – and in Quito, where this Tribunal is meeting. I am merely the human being presented with the opportunity to speak for the Reef here and now, so in a humble and no doubt flawed attempt to do this, I offer the following: –

You can quantify my length and my size and the fact that I can be seen from outer space, but in my world I am a home. I am a colourful, vibrant network of connected coral villages, made by the collective effort of millions of coral polyps over millions of years. Free swimming coral babies float about until they find a place to settle, and they normally settle on the comforting skeletons of their ancestors. They have made walls and mounds and hills of coral, that in turn are the home for others in our community: algae, sponges, starfish, molluscs, sea snakes, fish. These coral homes weave in and out and around hundreds of islands. The islands themselves are homes to crabs, who scuttle in the shallows, turtles who entrust their eggs to the warm, sandy beaches. Many of these beaches are disappearing for them. Without our reef, there is no home, no cosy place to play, nowhere to hide from predators, nowhere to lay their eggs. If our reef dissolves and disappears, so will all of the thousands of species of life that call this place home. If our reef disappears, there is nowhere else for our communities of life. If the world above us grows hotter, the world of the reef will change. And the world is surely changing.

For thousands of years people would visit us: pop in and out of the reef with their little boats, take some fish with great respect, then go home. But now the ships have gotten bigger. The ships have gotten scarier. And we watch the coastline with fear when there are great rains, as the rivers fill up with sediment, destroyed and disturbed by the people on the land, and the garbage and litter and junk comes out of the rivers to our Reef.

If the Reef could speak, I’m sure it would say what the humans who love the Reef are saying. We are frightened. We are frightened that something ancient, precious and irreplaceable will die.”

In conclusion, AELA believes that if the Reef could speak it would simply say that it wants to live. And this is a fundamental right held by all life and life supporting systems on Earth – to exist, thrive and evolve.

  1. Request of the Tribunal

Overview of the findings of the Regional Chamber

The following is the statement issued by the judges on the Regional Chamber of the Rights of Nature Tribunal held in Brisbane on 15 October:

“We have heard evidence about the poor and inadequate environmental governance and regulatory frameworks and this in itself is a critical issue and a major threat in itself.

We acknowledge the defence’s argument that a black letter reading of national law as it exists does both explicitly and implicitly enable the industrial and related developments that harm and threaten the ecological integrity of the GBR and in that context, the individuals and companies involved are in this sense acting lawfully.

However, the ‘awfulness of lawfulness’ is manifest when laws are strictly applied in a moral vacuum, with complete disregard for social and policy considerations. This definition of legal awfulness can be extended to include when law is strictly applied with complete disregard for ecological considerations including the wellbeing of the greater community of life and Earth our home as a whole. As stated in the Preamble to the Earth Charter under the subtitle Universal Responsibility: “To realize these aspirations, we must decide to live with a sense of universal responsibility, identifying ourselves with the whole Earth community as well as our local communities. We are at once citizens of different nations and of one world in which the local and global are linked. Everyone shares responsibility for the present and future well-being of the human family and the larger living world. The spirit of human solidarity and kinship with all life is strengthened when we live with reverence for the mystery of being, gratitude for the gift of life, and humility regarding the human place in nature.”

This Tribunal is concerned with the substance of the issue – not the black letter of the law. The substance is the long term wellbeing of the GBR as a globally unique and by any measure extraordinary phenomenon and expression of life on Earth. So we cannot let the limitations of law as it is currently, distract us from this concern which is any case a legally binding obligation under international and national law (World Heritage Convention and Australia’s Environment Protection and Biodiversity Conservation Act or ‘EPBC’).

Therefore, the Tribunal concludes that:

  1. Evidence is sufficient to support the view that the GBR is being harmed by avoidable human impacts which are interacting synergistically with climate change. We conclude that the GBR is suffering grave harm, is under growing threats, and in the absence of strong intervention, its long term ecological integrity and its outstanding universal value is at risk.
  2. We accept the evidence given, that if we intervene where we can, this will help ecosystem resilience and the GBR to persist, and ensuring such intervening actions is the responsibility of the Qld and Australian governments. Current law could be used: The World Heritage Convention obligations are not being met and there are State and Federal laws that could be used to protect the Reef, but these are dormant. We can ensure that mitigation responses regarding the impacts of climate change and cumulative effects are based on science.
  3. However, it is clear that given the overwhelming impacts from the ongoing growth in current modes of production and consumption a “new ethical and legal framing” whereby human wellbeing is contingent on a healthy planet and a thriving community of life is necessary if we are to protect in the long term large natural living phenomena such as the GBR. An eco-centric ethic is needed and needs to be given legal expression, and we have such expression in the Universal Declaration of the Rights of Mother Earth – a civil society charter which has been put forward for consideration by governments and the UN.
  4. We must have regard for future generations and intergenerational equity; we have an obligation to hand on to future generations the GBR in as good, if not better, condition than how we inherited it and this obligation is not being met.
  5. We also have obligations under the UN Declaration on the Rights of Indigenous People and the impacts on indigenous people, due to the deterioration of the GBR, are being ignored.
  6. We recommend that further Regional Tribunals be held in Australia, to hear fully from indigenous people and youth regarding their views on the health of the GBR.
  7. Meeting our obligations under the UNFCCC would put us on a sustainable energy pathway which would greatly assist in reducing stressors on the GBR.
  8. Finally, we find that several rights articulated in the Universal Declaration of the Rights of Mother Earth are clearly being transgressed in the case of the GBR. These include: Article 1a “The right to exist”; Article 1c. “the right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions’; and Article 1d “the right to maintain its identity and integrity as a distinct, self-regulating and interrelated being.”
  9. We recommend all these conclusions be drawn to the attention of the International Tribunal for the Rights of Nature.

Conclusions and recommendations

When deliberating its final decision about this case, AELA urges the International Tribunal to note a critical point made by marine ecologist Dr Glen Holmes at the Regional Tribunal in Brisbane, when he was questioned about the resilience of the Reef and whether any of the damage to the Reef can be reversed:

“The Great Barrier Reef is a strong ecosystem. It has the ability to recover from major disturbances, given the opportunity. If we were to address catchment run-off and address climate change, then there is the potential for the Reef to recover. Climate change is tricky, because there’s a big lag time involved. Even if we completely stopped our drivers of climate change, we would still see increasing impacts due to climate change. But with the removal of other pressures – water quality, fishing pressures, loss of coastal habitats for example – that would increase the Reef’s resilience to be able to handle the continuing pressures of climate change. So if we could address those impacts now and reduce those stressors, then the evidence that I’ve seen suggests that yes, the Reef would be more resilient and would be more likely to survive the continuing impacts of climate change.”

This is cause for great hope – but it means that we MUST stop all the activities that threaten this important member of the Earth Community.

Consequently, the Australian Earth Laws Alliance asks the Tribunal to find the following:

  • To declare that the rights of the Great Barrier Reef are being violated
  • To declare that the Queensland Government and Australian Federal Government must immediately:
    • Cease all new coal mine developments in Queensland;
    • Cease all new coal port, sea dredging and other destructive industrial developments on the Queensland coast, in order to protect the Great Barrier Reef;
    • In particular – cease all coal port developments and sea dredging at Abbott Point;
    • Comply with the recommendations made by the World Heritage Committee;
    • Invest in programs that assist Queenslanders, and all Australians, to reduce existing land based marine pollution and rebuild the resilience of the Great Barrier Reef.

Australian Earth Laws Alliance
convenor@earthlaws.org.au
www.earthlaws.org.au

APPENDICES

APPENDIX I: Scientific and Technical Reports

Australian Government, Great Barrier Reef Marine Park Authority, (2014) Great Barrier Reef 2014 Outlook Report, 2014. Report available at http://www.gbrmpa.gov.au/cdn/2014/GBRMPA-Outlook-Report-2014/

De’ath G, Fabricius KE, Sweatman H, Puotinen M. (2012). “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. Proceedings of the National Academy of Sciences of the United States of America. Available at http://www.pnas.org/content/109/44/17995.full

WWF Australia & the Australian Marine Conservation Society (2013) Report to UNESCO World Heritage Committee, Available at http://awsassets.wwf.org.au/downloads/mo030_fight_for_the_reef_report_to_the_unesco_world_heritage_committee_1feb13.pdf

APPENDIX 2: Private Companies involved with Coal Ports

Private companies

APPENDIX 2: Private Companies involved with Coal Ports

Private companies

  1. Companies who are building the coal ports:
    1. Hancock Coal
    2. Adani
    3. Port of Townsville
    4. Waratah Coal
    5. Mitchell Group
    6. North Queensland Bulk Ports Corporation
    7. Anglo American
  1. Companies responsible for the dredging
    1. Gladstone Ports Corporation and North Queensland Bulk Ports Corporation are responsible for the dredging and subcontract the work out.
  2. Companies who are building the coal mines in Queensland
    1. Qcoal
    2. GVK-Hancock
    3. Peabody Energy
    4. Stanmore Coal
    5. Vale
    6. Anglo American
    7. Glencore-Xstrata
    8. Waratah Coal
    9. Bandanna Energy
    10. Linc Energy
    11. Shehuo
    12. Cockatoo Coal
    13. Metro Coal
    14. Carabella Resources
    15. MacMines
    16. Yancoal
    17. BHP Mitsubishi Alliance (BMA)

 

APPENDIX 3: Community Group court actions to stop climate change and save the reef

  • Wandoan Case – run by the Environmental Defender’s Office Queensland for client Friends of the Earth
    • Court/jurisdiction – Land Court of Queensland
    • Main arguments – the mine would cause severe and adverse environmental impacts to Queensland due to the large emissions of greenhouse gases from the mining and use of coal, including leading to ocean acidification.
    • Outcome – Court action unsuccessful but investment decision that mine will not proceed
  • Alpha Case – run by the Environmental Defender’s Office Qld for client Coast and Country Association of Queensland – waiting on decision
    • Court/jurisdiction – Land Court of Queensland
    • Main arguments – approval should not be granted on the basis of the mine’s climate change impact from the use of coal, the groundwater modelling was flawed and thus the impact assessment was too and that the company had overstated the economic benefits of the project while ignoring the detriments.
    • Outcome – still to be decided
  • Xstrata-Newland Coal Mine Case – run by the Environmental Defender’s office of Queensland for client Queensland Conservation Council
    • Court / Jurisdiction: Queensland Land and Resources Tribunal
    • Main arguments: adverse impacts of greenhouse emissions from the mining, transport and use of coal.
    • Outcome: the objection was dismissed by the Land and Resources Tribunal, Queensland Conservation Council successfully appealed the decision to get a re-trial and the Queensland Government passed amendments to legislation to prevent a re-hearing.

[1] A copy of the Universal Declaration for the Rights of Mother Earth can be found here: http://pwccc.wordpress.com/programa/ last accessed 8 April 2014

[2] Universal Declaration for the Rights of Mother Earth, Clause 2(c)

[3] Universal Declaration for the Rights of Mother Earth, Clause 1.7

[4] De’ath G, Fabricius KE, Sweatman H, Puotinen M. 2012. “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. PNAS 109(44) 17995-17999 http://www.pnas.org/content/early/2012/09/25/1208909109

[5] This report can be found at: http://awsassets.wwf.org.au/downloads/mo030_fight_for_the_reef_report_to_the_unesco_world_heritage_committee_1feb13.pdf – last accessed 13 January 2014

[6] WWF Australia & the Australian Marine Conservation Society Report to UNESCO World Heritage Committee –http://awsassets.wwf.org.au/downloads/mo030_fight_for_the_reef_report_to_the_unesco_world_heritage_committee_1feb13.pdf , Legal Advice, Appendix 4.

[7] Bill McKibben, 350.org, quoted in Sydney Morning Herald – “Climate campaigner warns of burning need to keep coal in the ground”,   http://www.smh.com.au/environment/climate-change/climate-campaigner-warns-of-burning-need-to-keep-coal-in-the-ground-20130603-2nm3z.html – last accessed 13 January 2014

[8] One of these reports is De’ath G, Fabricius KE, Sweatman H, Puotinen M. (2012). “The 27 year decline of coral cover on the Great Barrier Reef and its causes”. Proceedings of the National Academy of Sciences of the United States of America. Available at http://www.pnas.org/content/109/44/17995.full

[9] Australian Government, Great Barrier Reef Marine Park Authority, (2014) Great Barrier Reef 2014 Outlook Report, 2014. Report available at http://www.gbrmpa.gov.au/cdn/2014/GBRMPA-Outlook-Report-2014/

[10] This quote is taken from Dr Glen Holmes’ expert testimony at the Regional Chamber of the International Tribunal for the Rights of Nature, held in Brisbane 15 October, available on Youtube

[11] For example, in decision EPBC 2011/6213 on 10 December 2013 the Federal Minister for the Environment approved dredging at Abbot Point and dumping in the Great Barrier Reef Marine Park.

Printable PDF copies of the Submission Papers.

Submission to Tribunal_notes for Erins presentation_v@ 1 Dec 2014

Submission to Tribunal_AELA Written Papers_GBR v@ 1 Dec 2014