Federal Coastal Legislation – Public Trust Principles
In two recent blogs (Nos 227 and 233), I outlined how US federal coastal legislation offered a strategic, long-term approach to coastal management in cooperation with the states. Although not without its difficulties, I argued that the US model offered institutional arrangements that could be a basis for improved federal-state relations in coastal management in Australia. I lament the lack of any similar vision to develop and implement any national program that would support state and local governments for the beneficial use, protection, and enhancement of coastal resources for present and future generations. Previous frustrations have recently been published in Coast and Ocean Management (2022—see attached references).
What I am now seeing is the use of Commonwealth finances to address coastal risk reduction. The prime aim is to improve “resilience” to extreme events. Under the previous government this was through an Emergency Response Fund and through legislation to establish a cyclone and related damage reinsurance pool (see blog No 210, February 2022 on amendments to the Terrorism Insurance Act 2003 ). The present government is now proceeding with a Disaster Ready Fund (DRF) program. While this federal engagement is welcomed, it is not at all clear that there exists any strategic framework in the allocation of funds to meet the challenges of climate change and avoid the pitfalls of maladaptation in the absence of any defined links to coastal and/or catchment planning.
One of the key aims in coastal management is to ensure public good outcomes. Disaster reduction and insurance activities do not have this as a prime focus. In my last blog (No 235) I touched on the work of Jim Titus in his description of the Public Trust Doctrine (PTD) as used in the USA ( see Titus paper in Maryland Law Review 1998). It opened up the question as to whether we need to enact provisions at a federal level for something like the PTD to guide the actions of all levels of government in Australia. The purpose would be to construct a strategic approach in addressing impacts of rising seas including loss of privately owned land to the sea.
My fascination with the PTD concept has opened opportunities to discuss it with legal scholars and practitioners, and with coastal scientists and engineers. I am especially indebted to Angus Gordon for his insights on problems of shoreline boundary definition, and with John Corkill, a former member of the NSW Coastal Council. John submitted his PhD in Law in 2021 at the University of Wollongong having produced a most remarkable thesis. This work built on his long interest in shoreline boundary issues (e.g., Corkill, 2013). The thesis topic was “Will private property rights ‘trump’ public rights to use coastal land, under climate change conditions?”. The thesis can be accessed from UoW thesis collection research online. It deserves wide readership not just for his scholarly analysis of legal issues on this topic, but also for his exposition of potential responses to a range of key issues confronting decision-makers and communities living in coastal areas subject to sea-level rise and coastal recession.
John answers his thesis question in the negative. A major concern is the capacity of property owners seeking to protect property at the expense of the public domain. Such actions lead to a form of “coastal squeeze”. He takes the reader through a range of legal arguments to show there exists in NSW at least some level of protection of the public interest. However, he sees the need for legislation that will better address future claims to protect public rights as rising seas and storm waves cut into land boundaries (real or imagined?). Courts should not be the battleground of coastal management in such a contested environment where sea level will continue to rise and move landwards supported over time by dramatic impacts of extreme events.
As John and I have separately discussed, the PTD as applied in various US states has its limitations under Australian law (especially with respect to so-called ‘takings’ or compensation provisions). John prefers the term “Public Use Doctrine” to avoid confusion with the complexities of the US PTD. I find it strange how the US and some other English-speaking countries formally embraced the concepts of the PTD, but Australia did not. However, at state level there has been recognition that ownership of the seabed and seashore could be seen as “inherently public property”. In NSW there is an “enduring tradition” of Crown ownership and public use of foreshores and tidal waters with a continuous government policy of seeking to reserve coastal Crown lands from sale and dedicating these lands for public purpose. Victoria has been quite explicit in this regard. What is interesting is emerging jurisprudence in NSW that highlights coastal public access as essential public purpose but also alludes to or refers to the PTD (see Sack et al., 2020 below). Chief Justice Preston in the Berrys Bay case last year highlighted the concept of the PTD as derived from the Roman property law citing some US PTD literature (see blog No 223). He stated: “There are things, which by their nature are part of the commons that all of the public have a right in common to access and use, such as air, running water, the sea and harbour, and which cannot be appropriated to private ownership” (Stannards Marine P/L v North Sydney Council, LEC 99 at 164).
Returning to what an Australian Government can do to manage valued coastal resources more strategically. As with the reinsurance legislation it can facilitate incentives to landowners to mitigate risk. But in this case the assistance was for the individual property owner to stay and protect or accommodate the hazard, not to be party to any local or regional plan to adapt to dynamic forces changing over time. The Disaster Ready Fund (DRF) mainly relies on bids from state agencies for support. However, tying such funding to strategic climate change adaptation outcomes is not clear especially where it is necessary to ensure public good outcomes.
Around the Australian coast there will be more and more properties exposed to inundation and receding/eroding shores over the next several decades. One way to proceed is with what I am calling a Coastal Adaptation Management Act. This would build on knowledge of current and projected impacts of climate change on coastal resources as outlined back in 2009 by the then Dept. of Climate Change and since revised by state and various local councils, and other entities. Such a federal law would in the words of Beatty and Marshall (2018) go towards “statutory reconciliation of private rights and public interests”. It could do this through applying principles of the PTD supporting the community expectation that the State will protect the free use and amenity of public lands. This should involve statutory-based agreements between federal and state governments that incentivize actions to protect public interests. Two key PTD principles could be employed that would help in planning for property boundary shifts over time: (1) that foreshores and other agreed coastal lands are held by the State/Crown “in trust” for current and future generations; and (2) the State/Crown has an affirmative ongoing duty to safeguard the preservation of such resources for the benefit of the general public (see Sack et al., 2020).
Of course, such a commitment by federal and state governments will require political courage. But look at the consequences of doing nothing. From a science perspective dynamic shifts in shoreline position and associated adverse natural and human impacts are inevitable. Private interests can be very persuasive leading to ad hoc arrangements that will ‘trespass” or damage on what should be the public domain. A defined NATIONAL intent to protect public access and use of our beaches and estuary foreshores is a start thereby ensuring the dominant interest of ownership of lands to be impacted by climate change involving public use remain public.
Thom, B. (2022) Coastal management and the Australian Government: a personal perspective. Ocean and Coastal Management https://doi.org/10.1016/j.ocecoaman.2022.106098
Sack, B., Allen, T. and Thom, B. (2020) Coastal management and protecting the public interest: recent NSW Land and Environment Court decisions. Environment Planning and Law Journal, 37, 128-136. (See reference here to conference paper by Beatty and Marshall).
Thom, B. (2020) Future challenges in beach management as contested places. In Jackson and Short eds, Sandy Beach Morphodynamics, Chapter 29, 711-731 (See references to US and UK legal literature and my earlier related articles).
Corkill, J. (2013) Ambulatory boundaries in New South Wales: real lines in the sand. Property Law Review, 3, 67-84 (for more details and updated references see his PhD thesis 2021).
Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2023. For correspondence about this blog post please email email@example.com