Blast from the past?

[kc]

While I am somewhat reluctant, as it is all part of a past life, I have been drawn back into the somewhat controversial process of the zoning of the GBR under what was called the representative areas program (RAP). It stems from the contradictions (at law) between the zoning maps, the ACTUAL 211-page Zoning plan and international law (which Australia is a signatory to).

The issue revolves around the apparent error in every zoning map and the potentially unlawful prosecution of people fishing in “green zones” which may not actually be green zones.
To set the scene all the marine park zoning is carried out in commonwealth marine park waters. This is a well-established fact and not in dispute. The state government, at the time of RAP had flagged “complimentary zoning legislation” so the state marine park waters, adjoining the federal marine park waters, would reflect the same zone. While talked about it never actually happened so in any area of state marine park, adjoining a federal park, the waters, unless specifically identified and zoned DO NOT HAVE MARINE PARK RAP ZONING. Again, this is undisputed by the lawmakers.
Typically, this has been “taken” to mean the mouths of rivers and “mean low water mark” and this is where the plot thickens.

Under international treaty “internal waters” (meaning the boundary of state waters) are governed by The United Nations Convention on the Law of the Seas (UNCLOS), ( (UNCLOS 1, UNCLOS 2 and UNCLOS 3 most recently ratified in 1994) and a strange old term (of measurement and application of measurement) called the Cannon Shot rule dating right back to the 1700’s. “Internal” waters (which in Australia’s case meaning State waters) are described as “mean low water”.

While I am not one for conspiracy theories as a rule there is clear evidence (in the zoning maps and zoning plan that the law has been selectively applied and this “selective application” has resulted in an inconsistency in the whole RAP process which could result in the whole thing having to be rewritten, or, the State government having to retrospectively implement a law ceding large areas of state government waters, to the commonwealth AND Australia having to withdraw from the UN UNCLOS treaty and that is not going to happen.

So, here’s the rub. A coastline typically determines that state waters finish at mean low water mark, and within the GBRMPA Zoning plan the term “mean low water mark” is used to describe the boundary of any zone which comes into contact with state waters (being the coast or coast of an island as all islands are state government, even is surrounded by federal waters).
For anyone who wants to see the anomaly at work get a copy of map MPZ10 and look at the bay located at 20 09 33 and 148 34 30. This, locally known as Earlando Bay/Clarks Cove is zoned blue and adjoins a green zone. The map, which its states in the disclaimer on the front, is a “guide to zoning only” and one needs to refer to the “plan” when intending to “use the marine park”. So looking at “this” green zone in the plan its description (page 173 6.107 mpz20-1114 ) starts at the most north westerly point of the mainland headland (call it point a) and effectively returns from gps point to gps point back to the point on the mainland identified as the South Easterly headland (point b), crosses the first little bay to the next headland (point c) and then traverses to the original starting point (point a, again), and effectively isolates that bay as a blue zone adjoining a green zone. The zoning plan however, in the zoning plan text, says from point b, right back to point a, the green zone covers the area “along the coastline at mean low water back to the point of commencement”. How can this be? The map shows a blue zone, loud and clear and the actual plan identifies this as a green zone, unambiguously.

I know from my past life a lot of lobbying went on over this particular bay and despite the wording of the “plan” the UNCLOS law was applied which deems the enclosed area of this bay to be state marine park waters NOT federal waters. In essence, the Cannon Shot rule was applied. “Mean Low Water Mark” (MLWM) is not literally MLWM “IF” the waters are enclosed by headlands with a distance between headlands of 3 nautical miles or less, in which case MLWM is then a straight line, headland to headland. Let that thought (and application of that law, in this specific example) sink in!

Having selectively applied the UNCLOS rule to this bay (only) it opens an enormous legal can of worms for every bay and waterway with a point to point headland of 3 nautical miles or less and the legality of the RAP zoning process. Every island, every bay and every straight with an island within 3 NM of the mainland shore. There are countless examples all the way along the coast and when a green zone breach ever hits the court with someone prepared to fight on the law based on UNCLOS it may well be a constitutional bloodbath. The very fact that GBRMPA maps have effectively “zoned” state marine park waters may well be technically against the law and any person who has been fined fishing in “state waters” may have been illegally fined. What a lovely can of worms.

It also begs the question as to why the UNCLOS law was applied in this specific example and not others. Political pressure at the time is the answer…AKA, my past life.
I might add I have sought preliminary opinion form a leading Maritime Law firm who confirms my view has significant merit.

I might add I am not posting the issue in any way to support fishing in green zones, but, ultimately, the law is the law and should be applied equally. I know GBRMPA watch this page, or certainly did watch it during the heady days of the TFPQs political activism process but "penny for your thoughts" and I will write to both GBRMPA and QPWS and seek a formal response to post here in due course..

kc

[Lucky_Phill]

Thanks Kev, an interesting read.

I think I got the drift of the dilemma.

I look forward to seeing the response from GBRMPA and QWPS ( which I believe is now called NPSR )


cheers Phill

[Lovey80]

This could get very interesting. I wonder how many people have been fined fishing in areas that could be in dispute? Only those doing the enforcement could ever know that, but if the information was available and those that may have a case of a redress could get together this could open that can of worms a whole lot faster.

[kc]

Lot more reading involved which includes the "Marine Parks Great Barrier Reef Zoning Plan 2004 which is a state Government document with some serious legislative anomolies between it and the federal act. It is designed to have state waters mirror commenwealth waters with the park but so many holes in it that you could use it to strain spaghetti. Interesting little hobby project for the next few weks.

kc